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CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreprcductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibiiographiques 


The 
to  t^ 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


D 
D 
D 
D 


a 


D 


Coloured  covers/ 
Couverture  de  couleur 

Covers  damaged/ 
Couverture  endommagde 

Covers  restored  and/or  laminated/ 
Couverture  restaurde  et/ou  pellicul6e 

Cover  title  missing/ 

Le  titre  de  couverture  manque 


I      I    Coloured  maps/ 


a 


Cartes  gdographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  blacki/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  rs;>i)-e) 


I      I    Coloured  plates  and/or  illustrations/ 


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Bound  with  other  material/ 
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Tight  binding  may  cause  shadows  or  distortion 
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Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajoutdes 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  dtait  possible,  ces  pages  n'ont 
pas  6t4  filmdes. 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  dt6  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mdthode  normale  de  filmage 
sont  indiqu^s  ci-dessous. 


D 
D 
D 
0 
D 


D 


Coloured  pages/ 
Pages  de  couleur 

Pages  damaged/ 
Pages  endommag6es 

Pages  restored  and/or  laminated/ 
Pages  restaurdes  et/ou  pellicul6es 

Pages  discoloured,  stained  or  foxed/ 
Pages  d6color6es,  tachetdes  ou  piqudes 

Pages  detached/ 
Pages  ddtach^es 


The 
posi 
of  ti 
filmi 


Orig 

begj 

the 

sion 

othfl 

first 

sion 

orii 


r~p\   Showthrough/ 


Transparence 

Quality  of  print  varies/ 
Quality  indgale  de  I'impression 

Includes  supplementary  material/ 
Comprend  du  materiel  suppldmentaire 

Only  edition  available/ 
Seule  Edition  disponible 


The 
shal 
TINI 
whi( 

Map 
diffi 
entii 
begj 
righ 
reqi 
met 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  6t6  filmtes  d  nouveau  de  faqon  d 
obtenir  la  meiileure  image  possible. 


Additional  comments:/ 
Commentaires  suppl6mentaires; 


Pagination  continued  from  Vol.  2. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film4  au  taux  da  reduction  indiqui  ci-dessous. 


10X 

14X 

18X 

22X 

26X 

30X 

/ 

12X 


16X 


20X 


24X 


28X 


32X 


The  copy  filmed  here  hes  been  reproduced  thenkt 
to  the  generosity  of: 

Supreme  Court  of  Canada 
Library 

The  imsges  eppeering  here  ere  the  best  queii^ ' 
possible  considering  the  condition  end  leg.t  !k  • 
of  the  originsi  copy  end  in  keeping  with  the 
filming  contrsct  speciflcetione. 


Originel  copies  in  printed  peper  covers  ere  filmed 
beginning  with  the  front  cover  end  ending  on 
the  lest  psge  with  s  printed  or  illustreted  impree- 
sion,  or  the  beck  cover  when  appropriete.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impree- 
sion.  and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


L'exempiaire  filrn^  fut  reproduit  grdce  i  la 
g^nirositA  ds: 

Cour  suprAme  du  Canada 
Bibliothdque 

Les  images  suivantes  ont  ^t^  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  et 
de  la  nettetA  de  rexemplaire  film6,  et  en 
conformity  avec  ies  conditions  du  contrat  de 
^ilmege. 

Les  exemplaires  originsux  dont  la  couverture  en 
pepier  est  imprimAe  sent  filmis  en  commengant 
per  le  premier  plat  et  en  terminant  soit  par  la 
derniAre  page  qui  comporte  une  smpreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  salon  le  cas.  Tous  ies  autres  exemplaires 
originaux  sent  filmte  en  commenpant  par  la 
premiere  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  derniAre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  -^^  (meaning  "CON- 
TINUED"), or  the  symbol  y  (meening  "END"), 
whichever  applies. 

Maps,  plates,  chartrt.  etc..  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Un  dee  symboles  suivants  apparaitra  sur  la 
derniire  image  de  cheque  microfiche,  seion  le 
cas:  le  symbole  — ^^  signifie  "A  SUIVRE",  le 
symbole  V  signifie  "FIN". 

Les  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
fiim^s  d  des  taux  de  rMuction  diffdrents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clichi,  II  est  film^  d  partir 
de  I'angle  supArieur  gauche,  de  gauche  d  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  n^cessaire.  Les  diagrammes  suivants 
illustrent  la  m^thode. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

EI( 


EIGHTS,  REMEDIES,  AND  PEACTIC^ 


1 


AT 


A 


A.V 


/  0,  /i_-. 


RIGHTS,  REMEDIES, 


AND 


PRACTICE, 

AT  LAW,  IN  EQUITY,  AND  UNDER  THE  CODES. 

A  TREATISE  ON 

AMERICAIT   LAW    ^-'•^-■3 

IN  CIVIL  CAUSES; 


WITH 


A  DIGEST  OF  ILLUSTRATIVE  CASES. 


BY 


JOHN  D.  LAWSON, 

ATJTHOE  OF  WORKS  ON  PRESUMPTIVE    EVIDENCE,  EXPERT   EVIDENCE,  CAERIEBa, 
USAGEE  A»D  CUSTOMS,  DEFENSES  TO  CRIME,  ETC. 


IN    SEVEN    VOLUMES. 


Vol.  Iir. 


/' 


SAN  FRANCISCO: 
BANCROFT-WHITNEY    COMPANY, 

Law  Publishers  and  Law  Bookselleks.^ 

1890. 


J 


Entered  according  to  Act  of  Congresa  in  the  year  1890, 

By  JOHN  D.  LAWSON, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


del 
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anc 
cioi 
( 
and 
iorij 
Shi 
rea 
tair 


Stbrbotyped  bt 

FuMEE-BoLUNs  Electrotype  Coupani, 

San  Fbancisco. 


PREFACE. 


In  this  volume  the  second  division  of  the  work 
— Personal  Rights  and  Remedies  —  commences.  Un- 
der this  division  are  included  the  titles,  Torts  in  Gen- 
eral, Torts  in  Domestic  Relations,  Conspiracy,  Assault 
and  Battery,  False  Arrest  and  Imprisonment,  Mali- 
cious Prosecution,  Negligence,  and  Slander  and  Libel. 

On  page  2383  the  third  division — Property  Rights 
and  Remedies— begins;  and  three  titles  of  this  divis- 
ion, viz.,  Personal  Property  in  General,  Animals,  and 
Ships  and  Shipping,  will  be  found  in  this  volume.  The 
remaining  titles  of  this  extensive  division  will  be  con- 
tained in  the  succeeding  ^three  volumes. 

J.  D.  L. 


TI 


§100 
§]01 
§  101 
§101 
§101 
§  101 
§101 
§101< 

§ior 

§101i 
§101! 
§  1021 

§1021 

§1025 

§102J 

§1024 

§102S 

§  102G 

§  1027 

§  1028 

§  1029 

§1030 

§  1031 

§  1032, 

§  1033, 

§1034. 

§  1035. 

§  1036. 

§  1037. 


TABLE  OP  CONTENTS  OP  VOLUME  IIL 


§1009. 
§  J  010. 
§  1011. 
§  1012. 
§  1013. 
§  1014. 
S  1015. 
§  1016. 
§  1017. 
§  1018. 
§  1019. 
g  1020. 

§1021. 

§1022. 

§1023. 

§  1024. 

§  1025. 

§  1020. 

§  1027. 
§  1028. 
§  1029. 
§1030. 
§  1031. 
§  1032. 
§  1038. 
§1034. 
§  1035. 
§  1036. 
§  1037. 


Title   VIII.  — PERSONAL  WRONGS    IN 

GENERAL. 


CHAPTER    XLIX, 

TORTS  IN  GENERAL. 

Wrong  or  tort  tlofmod. 

Intent  in  tort. 

Injury  and  damage  must  concur. 

Damnum  absque  injuria  — Lawful  exercise  of  one's  right. 

Accident. 

Public  injury. 

When  tort  also  a  crime. 

Action  for  causing  death  —  No  action  at  common  law. 

The  statutory  remedy. 

Who  may  sue  —  And  for  wlioae  benefit. 

Wrongful  act,  neglect,  or  default. 

Right  not  enlarged  by  statute -No  action  if  deceased  could  not 

have  sued. 
Damages  —  Measure  ot.  * 

Where  deceased  a  minor. 
Evidence  — In  general. 
In  mitigation. 
Pleading. 

Contract  and  tort  —  Waiving  contract  and  suing  in  tort. 
Waiving  tort  and  suing  in  contract. 
Proximate  and  remote  cause  —  In  general. 
Intervening  causes. 

Not  liable  for  remote  or  unexpected  damage. 
In  case  of  fires. 
Law  and  fact. 

Remedies  by  act  of  party  —  Abatement  of  nuisance. 

Self-defense. 

Remedies  by  act  of  party  —  Recaption  or  reprisal. 

Entry  on  lands  to  repossess  them. 

Distress  of  cattle  —  Damage-feasant. 


VIU 


TABLE   OF   CONTENTS. 


§  1038.  Distross  of  goods. 

§    0.39.  Uoniody  I)y  action. 

8  i040.  Who  aro  rcsponaiblo  —  Infants,  marrioti  women,  uorporatioub,  luna- 
tics. 

§  1041.  .Joint  wrong-doors  —  Participation  —  Ratification. 

§  1042.  Liability  of  plaintiflf  in  writ  for  acts  of  officers. 

8  1043.  Liability  of  officer  for  acts  of  deputies. 

§  1044.  Intentional  wrong-doers  —  Liab'o  jointly  and  sovcrally. 

§  1045.  No  contribution  among  wrong-doers —  Exceptiona. 

§1040.  Joint  wrong-doors  — Injury  sustained  by  one. 


Ti 


Title  IX.— CONSPIKACY, 
CHAPTER   L. 

CONSPIRACY.\ 

§  1047.  Conspiracy  —  Wben  actionable. 

§  1048.  Who  liable. 

§  1049.  Evidence. 

§  1050.  Pleading. 


Title  X.  — ASSAULT  AND  BATTERY. 


CHAPTER  LI. 


ASSAULT  AND  BATTERY, 

§  1051.  Assault  and  battery  —  What  is  an  assault. 

§  1052.  What  is  a  battery. 

§  1053.  Defenses  —  Intent  essential  —  Accidental  battery. 

§  1054.  Consent. 

§  1055.  Defense  of  person. 

§  1050.  Defense  of  property. 

§  1057.  Preventing  breach  of  peace. 

§  1058.  In  domestic  relations. 

§  1059.  Innkeepers  —  Common  Carriers  —  Meetings,  etc. 

§  1060.  Damages  —  Measure  of. 

§  lOGl.  Aggravation  of. 

§  10G2.  Mitigation  of. 

§  1063.  Evidence. 


luoa* 


TABLE   OP  CONTENTS.  ^ 

Title  XI. —  FALSE  ARREST  AND  IMPRIS- 
ONMENT. 

CHAPTER  LIT. 

FALSE  ARREST  AND  IMPRISONMENT. 


glOG4. 

§10G5. 

§  lOGG. 

§1007. 

§1068. 

I  10(39. 

§  1070. 
§  1071. 
§  1072. 
8  1073. 
§  1074. 
§  1075. 
§  1070. 
§  1077. 
§  1078. 
8  1078. 


FaUo  imprisonment  —  What  is. 

Restraint  without  process  —  When  permitted. 

Imprisonment  of  insane  persons. 

Restraint  with  prooeaa  — In  general. 

In  civil  cases. 

Arresting  wrong  person. 

Void  process. 

Defective  process. 

Arrest  by  military  order. 

Arrest  without  warrant—  By  officer. 

By  private  person. 

Who  liable  —  Officer  issuing  procesd. 

Party  causing  arrest. 

Damages. 

Evidence. 

Pleading. 


Title  XII. —MALICIOUS  PROSECUTION. 

CHAPTER  LHI. 
WHEN  ACTION  LIES. 

§1080.     Malicious  prosecution  — Criminal  proseoutioa. 

§  1081.     Civil  suit  and  arrest  or  attachment 

§  1082.    Civil  action  without  arrest  or  attachment. 


§  1083. 
§1084. 
§  1085. 
§  1080. 
§1087. 
§  1088. 
§  1089. 


CHAPTER  LIV. 
REQUISITES  OP  THE  ACTION. 

What  plaintiflF  must  show  to  sustain  action. 
Commencement  of  prosecution. 
Termination  of  prosecution. 
Probable  cause  —What  is  —What  is  not. 
Good  faith  and  honest  behef  immaterial. 
Want  of  jurisdiction  of  court  immaterial. 
Guilt  or  innocence  irrelevant. 


X  TABLE   OP  CONTENTS. 

§  1090.  Sufficiency  of  charge  irrelevant. 

§  1091.  Personal  knowledge  of  prosecutor  unnecessary. 

§  1092.  Subsequently  discovered  facts  irrelevent. 

§  1093.  The  judicial  proceedings  —  When  evidence  of  probable  cause. 

§  1094.  The  judicial  proceedings  —  When  evidence  of  want  of  probable  cause. 

§  1095.  Evidence  of  character  and  reputation  of  plaintiff. 

§  1096.  Advice  of  counsel  as  a  defense. 

§  1097.  Malice  also  essential. 

§  1098.  Evidence  to  show  malice. 


CHAPTER  LV. 

WHO  LIABLE  — EVIDENCE  AND  DAMAGES. 

§  1099.  Who  liable  —  In  general. 

§  1100.  Liability  of  prosecutor  for  judicial  error  or  acts, 

§  1101.  Burden  of  proof. 

§  1102.  Law  and  fact., 

§  1103.  Evidence. 

§  1104.  Damages. 


TiTLD  XIII.  —  WEONGS   IN  DOMESTIC  RE- 
LATIONS. 


CHAPTER  LVI. 

CRIMINAL  CONVERSATION  AND  SEDUCTION. 

§1105.  Interference  with  marital  rights  —  Criminal  conversation, 

§  1106.     Defenses. 

§  1107.  Damages. 

§  1108.  Evidence. 

§1109.  Interference  with  parental  rights — In  general. 

§  1110.  Seduction  defined  —  Elements  of. 

§  1111.  Seduction  alone  not  actionable. 

§  1112.  Rights  of  action  by  woman  seduced, 

§  1113.  By  father. 

§  1114.  By  mother. 

§1115.  By  others. 

§1116.  Where  woman  is  of  age, 

§  1117.  Statutory  remedy. 

§  1118.  Defenses. 

§  1119.  Damages  —  Measure  of. 

§1120.  Evidence  —  In  general. 

§  1121.  In  aggravation. 

§  1122.  In  mitigation. 

§  1123.  Pleading. 


§  1124. 
§  II25. 
§  1.'26. 


§  1127. 

§  1128. 

§1129. 

§1130. 

§1131. 

§  1132. 

§  1133. 

§  1134. 

§  1135. 

§  1136. 
§  1137. 
§  1138. 
§  1139. 
§  1140. 
§  1141. 
§  1142. 


TABLE  OP  CONTENTS,  jj 

CHAPTER  LVII. 

INJURIES  FROM  INTOXICATING  LIQUORS. 
Injuries  from  intoxicating  liquors  -  Civil  damage  laws 
Group  one-Statutes  of  Maine,  Connecticut,  and  Indiana. 
Group  two-Statutes  of  Arkansas,  Massachusetts,  Missouri,   New 

l|Ul>.Uly  absolute  -LswIulMM  of  sale  immaterial, 

r:t  isX."""" "'  ""^^  -  ""'""^  ^^  "'•"■ 

Liability  of  owner  or  lessor  of  premises. 

Who  may  sue  —  In  general. 

Injuries  to  person. 

Injuries  to  property. 

Injuries  to  means  of  support. 

Exemplary  damages. 

Remote  damages. 

Mitigation  of  damages  —  Evidence. 

Evidence  in  general. 

Law  and  fact. 

Pleading. 

Defenses. 


§  1143. 
§  1144. 
§  1145. 
§  1146. 
§  1147. 
5  1148. 


Title  XIV.— NEGLIGENCE. 
CHAPTER  LVIII. 

DANGEROUS  AGENCIES. 
Keeping  or  shipping  dangerous  or  noxious  articles  or  property 
Vending,  letting,  or  lending  dangerous  articles.  ^     ^' 

Use  of  nre-arms. 

Explosion  of  steam-boilers. 
Blasting  rocks. 

Contagious  diseases-  Unwholesome  food. 


§  1149. 
§  1150. 
§  1151. 
§  1152. 


CHAPTER  LIX. 

INJURIES  ON  REAL  PROPERTY. 

Owners  of  premises  -No  duty  towards  trespassers  or  sight-seers 
Sprmg.guns.  and  defense  of  property.  ^ 

Persons  invited  expressly  or  impliedly. 
Proprietors  of  places  of  public  resort. 


acii 


TABLE  OP  CONTENTS. 


8  1153.  Eailroadstationa— Vessels— Wharve»— Toll -bridges. 

§  1154.  Injuries  to  third  persons  from  defective  condition  of  leased  property 

—  When  lessor  and  when  lessee  liable. 

§1155.  Who  are  occupiers— When  landlord  liable. 

§  1136.  Liability  of  landlord  to  tenant. 

§  1157.  Excavations  and  obstructions  on  oneVi  land  near  highway. 

§  1158.  On  public  streets, 

§  1159.  Areas  under  sidewalks. 

§  1160.  Objects  falling  upon  travelers. 

§  1161.  Snow  and  ice  on  roofs  —  On-sidewalks. 

§  1162.  Telegraph  wires  in  streets. 

§  1163.  Objects  frightening  horses. 

§  1164.  Permissible  obstruction  in  streets — Building  materials. 


CHAPTER  LX. 

INJURIES  ON  HIGHWAYS. 

§  1165.  Injuries  while  driving  on  the  highway  —  Liability  in  general. 

§  1166.  Law  of  the  road  —  Keeping  to  the  right. 

§1167.  Pedestrian  and  vehicle  —  Horsemen. 

§  1168.  Collisions  with  runaway  horses. 

§  1169.  Contributory  negligence  on  highways —  Duty  to  look  for  defects  and 

dangers. 

§  1170.  What  is  and  what  is  not  proper  use  of  highway  by  traveler. 

§  1171.  Rate  of  speed —  Manner  of  driving. 

§  1172.  At  night. 

§  1173.  Skittish  or  scared  horse —  Defective  vehicle  or  harness. 

§  1174.  When  plaintiff  has  knowledge  of  defect 


CHAPTER  LXI. 

INJURIES  BY  RAILROADS. 

§  1175.  Railroad  tracks  in  streets  —  Negligence  in  care  of. 

§  1176.  Trains  frightening  horses  of  travelers. 

§  1177.  Obstruction  of  streets  by  railroad  trains. 

§  1 178.  Street-cars  —  Injuries  to  travelers. 

§  1179.  Contributory  negligence  of  traveler. 

§  1180.  Railroad  crossings  —  Rights  of  publio— -Liability  of  railroad  for  in- 

juries. 

§  1181.  Degree  of  care  required  of  railroad. 

§1182.  Rate  of  speed. 

§  1 183.  Duty  to  give  warning  —  Ringing  bell  or  sounding  whistle. 

§1184.  Evidence  as  to  giving  of  signals. 

§  1185.  Gates  at  crossings  —  Flag-men. 


§  iai3. 

§  1214. 
S  1215. 
§  1216. 
§  1217. 
§  1218. 
§  1219. 
§1220. 


Snse. 

§  1187. 
§  1188. 
S  1189. 
81190. 
8  1191. 
8  1192. 
8  1193. 
8  1194. 


JangeFotiff  crossings  -  Obstructed  view: 
Running  or  flying  switch  -  Backing  cars. 
Contributory  negligence  -  In  general, 
Duty  to  look  and  listen. 

?erl'^'7*  contributory  negligence  at  crossings. 
Persons  under  physical  disabilities.  ^ 

Trespasser  on  tracks  -  Duty  and  liability  of  company 
Persons  on  track  by  express  permission.  ^    ^• 

Persons  on  track  by  license  or  custom. 


ZIU 


§  1195. 
8  1196. 
8  1197. 
§  1198. 
8  1199. 
81200. 

8  1201. 

81202. 

81203. 

61204. 

8  1205. 
81206. 
61207. 
81208. 
61209. 
8  1210. 
8  1211. 
6  1212. 


§  1213. 
§  1214. 
8  1215. 
8  1216. 
8  1217. 
8  1218. 
8  1219. 
81220. 


CHAPTER  LXII. 

CONTRIBUTORY  NEGLIGENCE. 

Contributory  negligence  of  plaintiff  a  bar 

i»amage  not  apportioned. 

Requisites  of  contributory  negligence  -  Wanf  „*     ^- 

Must  be  proximate  cause  of  iSury  ^^"^  '"''• 

Where  defendant's  act  willful  or  wanton. 

ft:5tr r4t u7  "^^^'^^^^^  -  ^*^^^«  ^  -^-P^te  another-s 

Acting  erroneously  through  sudden  fear. 

Endeavormg  to  save  life  of  another. 

Rule  of  "  comparative  neglicence "      Tin„«-        ^ 

Rnle  where  plaintiff  a  law-bSer    ""  ~  ^"^^  '  ^*^- 

Rule  where  plaintiff  a  trespasser.  " 

Burden  of  proof  of  contributory  negligence,. 

CHAPTER  LXIII. 

EVIDENCE- PLEADING  AND  DAMAGES. 

What  is  negligence-Evidence  of  negligence. 
Law  and  fact  -  When  negligence  for  tl^  c^ 
When  neghgenoe  for  the  jury. 
Pleading. 

Exemplary  and  punitory  damages. 
Mitigation  of  damages. 


XIV 


TABLE  07  C0NTKKT8. 


§  1221.    Amount  of  damage  —  Verdicts  Bostained. 
§  1222.    Verdicta  set  aside  aa  excessive. 


Title  XV.— SLANDER  AND  LIBEL. 


CHAPTER  LXIV. 

DEFAMATION  IN  GENERAL. 

§  1223.  Defamation  —  When  defamatory  words  actionable. 

§  1224.  Intent   immaterial  —  Party  presumed   to  intend   consequences 

Mistake. 

§  1225.  Freedom  of  the  press  —  Censorship  abolished. 

§  1226.  Injunction  will  not  lie  to  restrain  publication  of  libel. 

§  1227.  Comment  and  criticism  on  public  matters. 

§  1228.  What  are  "public  matters." 

§  1229.  National  and  state  matters. 

§  1230.  Administration  of  justice. 

§  1231.  Local  government. 

§  1232.  Public  institutions. 

§  1233.  Ecclesiastical  matters. 

§  1234.  Literary  and  artistic  criticism. 

§  1235.  Other  public  matters. 

§  1236.  Publication. 

§  1237.  Who  liable  —  All  parties  instrumental  in  publication  liable. 

§  1238.  Newspapers. 

§  1239.  Repetition  of  libel  —  Who  liable. 

§  1240.  Slander. 

§  1241.  Construction  of  defamatory  words. 

§  1242.  The  innuendo  —  The  colloquium. 

§  1243.  Certainty  as  to  charge  —  Proof. 

§  1244.  Certainty  as  to  person  defamed  —  Who  may  sue. 


CHAPTER  LXV. 


SLANDER. 

§  1245.  Slander  in  general. 

§  1246.  Words  imputing  indictable  offense. 

§  1247.  Words  imputing  contagious  disease. 

§  1248.  Slander  in  one's  calling  or  office. 

§  1249.  Ofhce  or  calling  may  be  of  any  kind. 

§  1 250.  Illegal  occupations. 

§  1251.  Past  holding  or  pursuit  insufficient. 

§  1252.  Words  actionable  where  calling  or  office  is  slandered. 


§: 

§] 
§] 
§1 
§1 
§1 
§1 
§1: 


5PABLB  OP  CONtENTS. 


§  1253. 
§  1254. 
§  1255. 
§  1256. 
§  1257. 
§  1258. 
§  1259. 
§  1260. 
§  1261. 
§  1262. 
§  1263. 
§  1264. 
§  1265. 


xy 


In  general. 

Attorneys. 

Clergymen. 

Mechanics  and  workmen. 

Merchants  and  traders. 
Officers. 

Physicians  and  surgeons, 
other  wordsnot  actionable  except  in  case  of  special  damage. 


§  1266. 

§  1267. 

§  1268. 

§  1269. 

§  1270. 

§  1271. 

§  1272. 

§  1273. 
§  1274. 
§  1275. 
§  1276. 
§  1277. 
§  1278. 
§  1279. 


CHAPTER  LXVI. 

LIBEL. 

Libel  defined  — Form  of. 

What  libelous  words  are  actionable. 

Ahter  — Not  libelous. 

Libels  on  holders  of  offices. 

Libels  on  professional  men. 

Clergymen. 

Journalists  and  newspapers. 

Lawyers. 

Medical  men. 

Libels  on  merchants  and  traders 

When  libel  on  thing  a  libel  on  the  individual. 

Slander  of  title. 

Slander  of  goods. 

Other  cases. 


§  1280. 
§  1281. 
§  1282. 
§  1283. 
§  1284. 
§  12c5. 
§  1286. 
§  1287. 
§  1288. 


CHAPTER  LXVII. 

DEFENSES. 
Justification  -  Truth  when  a  defense. 

Members  of  legislative  bodies. 

Witnesses  in  judicial  proceedings. 

Judges, 

Jurors. 

Pleadings  and  papers  in  cause. 

Counsel  and  attorneys. 


XVI 


TABLB  OP  CONTENTS, 


§1289,  Military  courts. 

§  1290.  Qualified  privilege  —  Duty  to  society. 

§  1291.  As  to  character  of  servants. 

§  1292.  Answers  to  confidential  inqulriea. 

§  1293.  Information  volunteered. 

§  1294.  Confidential  relations. 

§  1295.  Statements  to  officers  of  the  law  and  public  authorities. 

§  1296.  Common  interest. 

§1297.  Self-defense. 

§  1298.  Reports  of  judicial  proceedinga* 

S  1299.  Legislative  proceedings. 

§  1300.  Other  reports — No  privilege*. 

§1301.  Malice— Proof  of. 


CHAPTER  LXVIII. 

DAMAGES— EVIDENCE— PLEADING. 

§  1302.  General  damages. 

§  1903.  Evidence  —  In  aggravation. 

§1301.  Evidence  —  In  mitigation. 

§  1305.  Special  damage  —  What  is  and  what  is  not. 

§  1306.  Pleading. 

§  1307.  Who  may  sue, 

§  1308.  Law  and  fact. 


DIVISION  m.— PROPERTY  RIGHTS  AND  REMEDIES. 

Title  XVI.— PERSONAL  PROPERTY  IN 

GENERAL. 


CHAPTER  LXIX. 

TITLE  TO   PERSONAL  PROPERTT, 

i  1309.  Title  by  original  occupancy. 

i  1310.  Abandoned  and  derelict  property. 

1 1311.  Waifs  and  treasure-trove. 

1312.  Wrecks  and  abandoned  vessels. 


TABLE  OP  CONTENTS. 


XVll 


§  1313. 
§  1314. 
6  1315. 
1 1316. 
S  1317. 
9  1318. 
8  1319. 
§1320. 
8  1321. 
§1322. 
8  1323. 
81324. 
§  1325. 
§  1326. 
§  1327. 
§1328. 
§1329. 
§1330. 
§  1331. 
§  1332. 
§  1333. 
§1334. 
f  1335. 
§  1336. 
§  1337. 
91338. 


Ust  property  -  Rights  and  UabUities  of  findew  of  chattels. 

What  IS  and  what  is  not  "  lost  property." 

Title  by  accession. 

Where  defendant  is  a  trespasser. 

Where  defendant  is  not  a  wrong-doer. 

Title  by  confusion  of  property. 

By  misconduct  of  party. 

By  consent  of  the  parties. 

By  mistake  of  party. 

By  act  of  stranger. 

By  inevitable  accident  or  Hs  vuijor. 

Title  by  gift — Gifts  defined. 

Gift  inter  vivos  -  What  may  be  the  subject  of. 

Subject-matter  and  donee  must  be  definite. 

Unexecuted  gift-Promise  to  make  gift-Revocation. 
Witt  on  condition. 

Delivery  essential  to  gift  -What  is  and  is  not  a  delivery. 

Acceptance,  how  far  essential. 

Executed  gift  is  irrevocable  _  Extent  and  effect  of. 

Gift  causa  myrtis-UMBt  be  made  in  expectation  of  death. 

Absolute  only  on  death  of  donor. 

What  property  may  be  the  subject  of. 

Delivery  of  property  essential- What  is  and  is  not  a  valid  delivery 
Acceptance  essential.  ucuvery. 

Other  requisites,  andeflfect  of. 

Other  methods  of  obtaining  title  to  chattels. 


8133a 

81340. 

§1341. 

§  1342. 

§1343. 

§1344. 

§1345. 

§1346. 

§1347. 

§1348. 

§1349. 

§1350. 

§  1351. 

§  1352. 

§1353. 


CHAPTER  LXX. 

THE  KINDS  OP  PERSONAL  PROPERTY. 

The  different  kinds  of  personal  property -Chattels  real  ajid  chattels 

personal — Corporeal  and  incorporeal 
Animals. 
Annuities. 

Copyrights,  trade-marks,  and  patents. 
Corpses — Dead  bodies  —  Burial  —  Cemeteries. 
Fixtures— Things  attached  to  the  freehold. 
Ice. 

Minerals. 

Manure. 

Salaries  and  pensions. 

Ships  and  vessels. 

Vegetables,  fruits,  ete. 

Money,  and  evidences  of  Indebtedness  —  Papers. 

Debts  and  demands  not  evidenced  by  writing. 

Other  kinds  of  chattels. 


XVIH 


JABLB  OP  COKTENTS, 


CHAPTER    LXXr. 

DESTRUCTION  OP  PERSONALTY  BY  FIRE. 

§1364.  Fires  —  Liability  in  general. 

§  1355.  In  clearing  land. 

§  1356.  Statutory  liability. 

§  1357.  Liability  of  raf Xoad  for  causing  fires. 

§  1358.  Duty  of  railroad  as  to  construction  of  engine. 

§  1359.  Duty  of  railroad  as  to  keeping  and  management  of  engine. 

j  1360.  Duty  of  railroad  as  to  track  and  right  of  way, 

§1361.  Evidence  of  negligence. 

§  1362.  Evidence  of  other  and  distinct  fires. 

§  1363.  Contributory  negligence, 

^0364,  Statutory  liability. 


Title  XYH.— ANIMALS 
CHAPTER  LXXII. 

TITLE  TO  AND  OWNERSHIP  OP  ANIMALS. 

§  1365.  Wild  and  tame  animals — Definitions. 

§  1366.  Tame  animals  subjects  of  property. 

§  1367.  Wild  animals  not  property,  unless  tamed  or  captured. 

§  1368.  Pursuit  alone  not  enough. 

§  1369.  Captured  wild  animals  regaining  liberty. 

§  1370.  Right  to  increase  of  animals. 

§  1371.  Regulation  of  keeping  of  animals  by  statute. 


CHAPTER  LXXIII. 


RIGHTS  OP  OWNERS  OR  KEEPERS  OP  ANIMALS. 

■-' « 

§  1372.  Action  for  taking  or  detaining  animal. 

§  1373.  Action  for  killing  or  injuring  animal. 

§  1374.  Defenses — Killing  ferocious  animal. 

§  1375.  Killing  animal  in  defense  of  person. 

§  1376.  Killing  animal  which  is  a  nuisance. 

§  1377.  Killing  animal  in  defense  of  property. 

§  1378.  Statutory  authority  for  killing  dogs  or  other  animals. 

§  1379.  Killing  or  injuring  trespassing  animals  —  Impounding. 

§  1380.  Rights  and  liabilities  of  finders  of  animals. 


TABLE  OP  CONTENTSu 

CHAPTER  LXXrV. 


XIX 


S 


IIABILITIES  OP  OWNERS  OR  KEEPERS  OP  ANIMALS. 

138L    Liabmty  of  owner  or  keeper  of  animal  _  Agister  -  Harborer  -  Joint 
Owners. 
Liability  for  act  of  servant  —  Notice  to  servant. 
Injuries  by  animals,  wild  and  tamo  —  Distinction. 
Injuries  by  tame  animals. 
Proof  of  scienter. 
Liability  enlarged  by  statute. 
Contributory  negligence  —  Children 
Trespassers  —  Watch-dogs. 
Negligence  in  driving,  securing,  or  using  animals. 
Owner  transferring  care  of  animals  -  Bound  to  notify  of  vicious  pro- 

pensities.  '^ 

Liability  for  trespasses  of  animals. 
Driving  cattle  on  highway. 
Keeping  diseased  animals. 
Selling  diseased  animals. 

CHAPTER  LXXV 


1382. 
§1383. 
81384. 
g  1385. 
M386. 
i  1387. 
n388. 
i  1389. 
il390. 

1 1391. 

1 1392. 
i  1393. 
"1394. 


§  1395. 

§  1396. 

§  1397. 

§  1398. 

§  1399. 

81400. 

§1401. 

§1402. 
§1403. 
§1404. 
§1405. 
§1406. 
§1407. 
§1408. 
§1409. 
§  1410. 
§  1411. 
§  1412. 
§  1413. 
8  1414. 
§  1415. 
8  1416. 
§  1417. 
8  1418. 


INJURIES  TO  ANIMALS  BY  RAILROADS. 

I>uty  to  fence  railroad  — At  common  law. 

By  contract. 

Duty  as  to  cattle  on  track  —  Slackening  speed. 

Ringing  bell  and  sounding  whistle. 

Evidence  of  negligence  -  Presumption  —  Burden  of  proof. 

Duty  to  fence  by  statute  —  In  general. 

Who  and  what  within  statutory  protection. 

At  what  places  fences  not  required. 

In  cities,  towns,  and  villages. 

Highway  crossings  and  highways. 

Public  places. 

What  fence  snAScient. 

Degree  of  care  in  maintenance  of  fence -Notice  of  defects. 

Private  crossings. 

Cattle-guards. 

Release  of  duty  to  fence. 

Contributory  negligence  —  As  to  fences. 

As  to  permitting  cattle  to  run  at  large. 

What  kinds  of  injuries  to  cattle  are  within  statute. 

Injuries  to  railroad. 

Law  and  fact. 

Pleading. 

Burden  of  proof  —  Evidence  of  negligence. 

Measure  of  damages. 


TABLE  OP  CONTENTS. 


Title  XVIII.— SHIPS  AND  SHIPPING. 


CHAPTER  LXXVI. 

SHIPS  AND  SHIPPINO. 

§  1419,  Ships  and  vessels  —  What  are. 

§  1420.  Title  to  ships  —  How  acquired — Bills  of  sale  -«  Registration. 

§  1421.  Mortgage  of  vessel. 

J  1422.  Part  owners  —  Rights  and  liabilities. 

§  1423.  Bottomry  —  Respondentia. 

§  1424.  The  master  —  His  duties,  rights,  and  powers. 

§  1425.  The  master  —  His  duties,  rights,  and  powers  —  In  cases  of  necessity 

and  emergency. 

§1426.  Ship's  husband. 

§  1427.  Supercargoes. 

§  1428.  The  seamen  —  Rights  and  dnties  of  —  Oontracts  with. 

§  1429.  The  seamen  —  Right  to  wages. 

§  1430.  The  seamen  —  What  is  and  what  is  not  a  forfeiture  of  wagea. 

§  1431.  Pilots  —  Rights  and  duties  of  —  Tows. 

§  1432.  Liability  for  repairs  and  supplies. 

§  1433.  Employment  of  ship — General  ship  —  Common  carrier. 

§  1434.  Employment  of  ship  —  Charter-party  —  Hiring  of  ship. 

§  1435.  Collisions. 

§  1436.  Collisions  —  Lights. 

§  1437.  Collisions  —  Watches  and  lookontB. 

§  1438.  Salvage  —  What  is  the  subject  of, 

§  1439.  Salvage  —  Who  is  entitled  ta 

§1440.  Salvage  —  Amount  of. 

§  1441.  General  average. 

§  1442.  The  admiralty  jurisdiction. 

§  1443.  The  admiralty  juiisdiction —  Torts  and  loattera  on  the  high  seas. 


esslty 


DIVISION  II. 

PEE80NAL  BIGHTS  AND  REMEDIES. 


TITLE  VIII. 

PEESOMI  WEONGS  IN  GENERAL. 


81009. 
8  1010. 
§  1011. 
§  1012. 
§  1013. 
§  1014. 
§  1015. 
§  lul6. 
8  1017. 
8  1018. 
8  1019. 
8  1020. 

§1021.  : 

81022  ' 

51023.  ] 

81024.  1 

81025.  1 
8  1026.  ( 

81027.  ^ 

81028.  1 

81029.  I 

81030.  li 
§1031.  I] 
8  1032.  L 
8  1033.  E 
81034.  S< 
§1035.  R 
§1036.  El 
§1037.  Di 
§1038.  Di 


TITLE    Vm. 

rEESON^  TVEONGS  m  GENERAL. 


81009. 

8  1010. 

§  1011. 

8  1012. 

8  1013. 

8  1014. 
8  1015. 
8  1UI6. 
8  1017. 
8  1018. 
8  1019. 
8  1020. 


CBAPTER  XLJX 
TORTS  m  GENERAL. 


§1021, 

§1022 

§1023. 

8  1024. 

8  1025. 

81026. 

§  1027. 

§1028. 

81029. 

81030. 

§  1031. 

8  1032. 
§  1033. 
§1034. 
§  1035. 
8  1036. 
§  1037. 
§1038. 


Wrong  or  tort  defiiied. 

Intent  in  tort. 

Injury  and  damage  muat  concur. 

Ja™  absque  injuria  -  Lav^  ^^  ,,  ^^,^  ^^^ 

r-ublic  injury. 

When  tor',  also  a  crime. 

Wrongful  act,  neglsct,  or  default. 

ZZ^"^'^  ""  ="""-''«  «tiou  a  deoe,.^  „^  ^ 
Damages  —  Measure  of. 
Where  deceased  a  minor. 
Evidence  — In  general. 
Tn  mitigation. 
Pleading. 

Law  and  fact. 

Remedies  by  act  of  mrfw      t?^ 

Ea^  on  i  t.'LZ^^ty-'  "  "^'^ 


§§  1009, 1010 


PERSOKAL  WRONGS. 


1710 


§  1039.  Remedy  by  action. 

§  1040.  Who  are  responsible  —  Infanta,  married  women,  corporationa,  luna- 
tics. 

§  1041,  Joint  wrong-doers  —  Participation  —  Ratification. 

§  1042.  Liability  of  plaintiff  in  writ  for  acts  of  officers, 

§  1043.  Liability  of  officer  for  acts  of  deputies. 

§  1044.  Intentional  wrong-doers  —  Liable  jointly  and  severally. 

§  1045.  No  contribution  among  wrong-doers  —  Exceptions. 

§  1046.  Joint  wrong -doers  —  Injury  sustained  by  one. 

§  1009.  Tort  Defined.  —  A  tort  is  a  wrong  independent 
of  contract.* 

§  1010.  Intent  in  Tort.  —  A  wrong  intent  is  not 
essential  to  liability.  One  injuring  another  is  liable  in 
damages  without  regard  to  the  intention  with  which  the 
act  was  done.^  An  act  intended,  but  not  accomplished, 
gives  no  right  of  action.^  An  act  which  does  not  amount 
to  a  legal  injury  cannot  be  actionable  because  it  is  done 
with  a  bad  intent.* 


'  This  is  the  definition  given  in  the 
English  Common  Law  Procedure  Act 
of  1852. 

2  Amick  V.  O'Hara,  6  Blackf.  258; 
Bruch^).  Carter,  32  N.  J.  L.  554;  Cate  v. 
Cate,  44  N.  H.  211;  Dexter  v.  Cole, 
6  Wis.  319;  70  Am.  Dec.  465;  Gibba 
V.  Chase,  10  Mass.  128;  Miller  v. 
Baker,  1  Met.  27;  Lincoln  v.  Buck- 
master,  32  Vt.  C52;  Howe  v.  Young, 
16  Ind.  312;  Tally  v.  Ayres,  3  Sneed, 
077.  See  Shippen  v,  Bowen,  4  Mc- 
Crary,  59. 

^  Kimball  v.  Harman,  34  Md.  407; 
C  Am.  Rep.  340;  Sheple  v.  Page,  12 
Vt.  519;  Jones  v.  Baker,  7  Cow. 
445;  Page  v.  Parker,  43  N.  H.  363;  80 
Am.  Dec.  172;  Herron  v,  Hughes,  25 
Cal.  555. 

*  Parke,  B.,  in  Stevenson  v,  Newn- 
ham,  13  Com.  B.  285;  Auburn  Plank 
Road  Co.  V.  Douglass,  9  N.  Y.  144; 
Occum  Co.  V.  Sprague,  34  Conn.  529; 
Chatfield  V.  Wilson,  28  Vt.  49;  Smith 
r.  Bowler,  2  Disn.  153;  Glendon  Iron 
Co.  V.  Uhler,  75  Pa.  St.  467;  15  Am. 
Rep.  599;  Payne  v.  R.  R.  Co.,  13 
Lea,  507;  49  Am.  Rep.  666,  the  court 
saying:  "The  question,  then,  is:  Is 
an  act,  not  unlawful,  rendered  action- 
able to  the  one  suffering  injury  there- 


from becanse  it  is  committed  will- 
fully, wickedly,  and  maliciously,  and 
in  pursuance  of  a  conspiracy  to  infiict 
the  injury  suffered?  JDoes  one  render 
himself  liable  in  damages  for  mali- 
ciously and  wickedly  exercising  his 
rights,  or  denouncing  his  intention  of 
so  doing,  if  thereby  he  injures  another? 
The  cases  relied  on  by  plaintiff,  cited 
by  Mr.  Addison  in  his  work  on  torts, 
sections  20  and  22,  where  tenants  were 
driven  away  from  holdings,  scholars 
frightened  from  school,  persons  pre- 
vented from  trading  at  one's  store  or 
with  his  vessel,  buyers  and  workmen 
driven  from  a  quarry,  do  not  serve  as 
precedents,  for  the  reason  that  in  all 
of  them  the  defendants  either  com- 
mitted or  threatened  unlawful  acts. 
In  most  of  them,  violence  was  used  or 
menaced;  in  some,  statutory  misde- 
meanors were  committed;  in  oth<irs, 
fraud,  duress,  or  libel  was  resorted  to. 
This  relieved  the  cases  of  the  diffi- 
culty or  doubt  which  exists  in  this; 
where  there  is  no  libel,  violence,  or 
broken  statute.  In  section  40,  how- 
ever, Addison  declared  broadly  that 
'  every  malicious  act  is  wrongful  in 
itself  in  the  eye  of  the  law,  and  if  it 
causes  hurt  or  damage  to  another,  it 


17U 


TORTS  IN  QEKEBAL. 


§1010 


So  it  has  been  held  that  no  action  wotild  lie  for  mali- 
ciously conspiring;  as,  insurance  officers  to  refuse  insur- 


ia  a  tort,  and  may  be  made  the  foun- 
dation of  an  action.'  Upon  this 
plaintiff  relies;  and  if  this  broad 
statement  contains  a  correct  expo- 
sition of  the  law,  they  are  right,  and 
the  demurrer  should  be  overruled;  for 
the  declaration  abounds  in  charges  of 
malice  and  wrong.  But  is  this  the  law? 
To  answer  this  correctly,  it  must 
first  be  understood  what  is  meant  by 
'malicious  aet.'  In  common  parlance, 
it  is  an  act  proceeding  from  hatred  or 
ill-will,  or  dictated  by  malice,  or 
done  with  wicked  or  malicious  inten- 
tions or  motives.  But  surely  this 
cannot  be  the  sense  in  which  the 
phrase  is  employed  by  Addison;  for  if 
it  were,  then  my  neighbor  would  be 
liable  to  me  if  from  ill-will  or  wicked 
motive  he  refused  to  let  me  get  water 
at  his  spring,  or  to  make  a  road  for 
myself  across  his  farm,  or  locked  his 
pump  or  his  gate  against  me,  or  built 
a  fence  on  bis  own  land  across  my 

f)ath,  or  built  his  store,  or  shop,  or  a 
ligh  fence,  on  his  own  land,  in  such 
close  proximity  to  my  windows  as  to 
exclude  light  and  view,  or  digged  on 
his  lot  below  the  foundation  of  my 
house,  thus  endangering  it.  It  is  un- 
reasonable that  actions  should  be 
maintained  for  any  of  these  things. 
For  though  my  neighbor  is  causma 
mo  hurt,  and  that,  too,  from  wicked 
motives,  and  is  thus  violating  the  moral 
law,  he  is  only  exercising  his  un- 
doubted right  to  use  his  own  for  him- 
self, and  deny  me  all  pifvilego  in  it; 
and  this  the  law  does  not  punish,  as 
has  often  been  ruled  in  courts  of  the 
highest  character:  Story  v,  Odin,  12 
Mass.  157;  7  Am.  Dec.  46;  Mahan  v. 
Brown,  13  Wend.  261;  28  Am.  Dec. 
461;  A.  &  C.  P.  R.  R.  Co.  V.  Douglass, 
9  N.  Y.  447;  Lasala  v.  Holbrook,  4 
Paige,  169;  25  Am.  Dec.  524;  Thurs- 
ton V.  Hancock,  12  Mass.  220;  7  Am. 
Dec.  57.  Judge  Cooley,  in  his  work 
on  torts,  page  278,  says:  '  It  is  a  part  of 
every  man's  civil  rights  that  he  be  at 
liberty  to  refuse  business  relations 
with  any  person  whomsoever,  whether 
the  refusal  rests  upon  reason,  or  is 
the  result  of  whim,  caprice,  prejudice, 
or  malice.  With  his  reasons,  neither 
the  public  uor  third  gersous  have  any 


legal  concern.'  And  again,  on  page  688: 
'  The  exercise  by  one  of  his  legal  right 
cannot  be  a  legal  wrong  to  another. 
....  Whatever  one  has  a  right  to 
do,  another  can  have  no  right  to  com- 
plain of.'  Tbia  he  considers  a  mere 
truism.  Baron  Parke  said,  in  Steven- 
son V.  Newnham,  13  Com.  B.  285:  'An 
act  which  does  not  amount  to  a  legal 
injury  cannot  be  actionable  because  it 
is  done  with  a  bad  intent. '  And  J  udge 
Black,  in  Jenkins  v.  Fowler,  24  Pa. 
St.  308,  declares:  'Any  transaction 
which  would  be  lawful  and  proper  if 
the  parties  were  friends  cannot  be 
made  the  basis  of  an  action  merely 
because  they  happen  to  be  enemies. 
As  long  as  a  man  keeps  himself  within 
the  law  by  doing  no  aet  which  violates 
it,  we  must  leave  his  motives  to  Him 
who  searches  the  heart. '  Judge  Coo- 
per, in  accordance  with  these  views, 
has  declared,  in  Macy  v.  Childress,  2 
Tenn.  Ch.  442:  '  It  is  no  defense  to  a 
legal  demand,  instituted  in  the  mode 
prescribed  by  law,  that  the  plain- 
tiff is  actuated  by  improper  motives. 
The  motive  of  a  suitor  cannot  be 
inquired  into.  Were  it  otherwise, 
nearly  every  suit  would  degenerate 
into  a  wrangle  over  motives  and 
feelings. '  The  question  was  ably  ar- 
gued and  received  .elaborate  con- 
sideration in  the  supreme  court  of 
Maine  in  the  recent  case  of  Heywood 
V.  Tillson,  46  Am.  Rep.  373,  wherein 
it  was  decided,  without  dissent,  that 
no  action  lies  by  the  owner  of  a  house 
against  one  who  maliciously  refuses 
to  employ  any  tenant  of  such  house, 
and  thus  prevents  the  renting.  It 
would  bo  unendurable  that  our  courts 
of  law  should  be  perverted  to  the  trial 
of  the  motives  of  men  who  confessedly 
had  done  no  unlawful  act.  It  is  sug- 
gestive of  the  days  of  'constructive 
treason.'  Upon  both  reason  and  au- 
tliority,  therefore,  it  is  clear  that  the 
phrase  '  malicious  act '  cannot  be  used 
by  Mr.  Addison  in  this  connection  in 
the  popular  signification  as  understood 
and  applied  uy  the  referees  in  this 
case;  or  if  so  used  by  him,  it  is  not 
a  correct  statement  of  the  law.  In 
another  sense,  it  is  correct.  Professor 
Greeoleaf,  in  hia  second  volume  on 


1010 


PEBSONAL  WBONOS. 


1712 


ance  on  the  plaintiffs  property;  *  or  for  maliciously  col- 
lecting the  notes  of  a  bank  and  presenting  them  for 
redemption;'  or  for  maliciouly  adopting  a  trade-mark  to 
the  prejudice  of  a  plaintiff  who  has  no  exclusive  right  to 
appropriate  it;"  or  for  throwing  open  one's  land  to  the 
public,  so  that  they  may  pass  over  it,  thereby  avoiding  a 
toll-gate;  *  or  for  maliciously  throwing  down  fences  put  up 
through  one's  land  to  mark  the  lines  of  a  road  which  has 
never  lawfully  been  laid  out.* 

Illustrations.  —  The  plaintiff  declared  against  the  defend- 
ant for  wantonly  and  maliciously  erecting  on  his  own  premises 
a  high  fence,  near  to  and  in  front  of  the  plaintiff's  windows,  with- 
out benefit  or  advantage  to  himself,  and  for  the  sole  purpose  of 
annoying  the  plaintiff,  thereby  obstructing  the  air  and  light 
from  entering  her  windows,  and  rendering  her  house  uninhabi- 
table. Held,  that  the  action  would  not  lie:  Mahan  v.  Brown,  13 
Wend.  261;  28  Am.  Dec.  461.  Plaintiff  had  been  publishing 
directories,  and  intended  to  publish  another;  defendant  went  tQ 
persons  who  had  advertised  in  plaintiff's  directories,  and  rep- 
resented that  plaintiff  had  gone  out  of  business,  and  thereby 
procured  advertisements  from  these  persons  for  a  directory 

*  Auburn  etc.  R.  R.  Co.  v.  Doug- 
lass, 9  N.  Y.  444,  450,  tho  court  say- 
ing: "  Independent  of  authority,  if  a 
malignant  motive  is  sufficient  to  make 
a  man's  dealings  with  his  own  prop- 
erty, when  accompanied  bjr  damage  to 
another,  actionable,  where  is  the  prin- 
ciple to  stop?  For  instance,  if  a  man 
sets  up  a  trade,  not  with  a  view  to  hia 
own  profit,  but  solely  to  injure  one 
already  in  the  same  trade,  how  can  the 
case  be  distinguished  in  principle  from 
this  ?  So  if  one  compels  his  debtor  to 
pay,  not  because  he  wants  money,  but 
that  the  latter  may  call  upon  his  debtor 
and  thus  ruin  him;  or  if  one  who  holds 
stock  in  an  incorporated  company, 
with  a  view  to  depreciate  the  stock 
and  thus  injure  some  other  holder, 
throws  his  stock  upon  tho  market  and 
sells  at  a  great  sacrifice, — would  not 
these  cases  fall  within  the  same  princi- 
ple ?  And  yet  no  one  would  contend 
that  an  action  would  lie  in  these  or 
similar  cases." 

*  Fowler  v,  Jenkins,  28  Pa.  St.  176; 
Jenkins  v.  Fowler,  24  Pa.  St.  303. 


evidence,  section  453  (2),  thus  defines 
a  malicious  act:  '  In  a  legal  sense,  any 
unlawful  act,  done  willfully  and  pur- 
posely to  the  injury  of  another,  is,  as 
against  that  person,  malicious.'  To 
determine,  then,  whether  a  malicious 
act  ia  wrongful  in  the  legal  sense,  and 
therefore  actionable,  we  must  first 
determine  whether  it  is  unlawful. 
But  if  unlawful  and  injurious,  it  is 
actionable,  irrespective  of  the  motive; 
and  whether  malicious  or  not,  if  not 
unlawful  and  injurious,  then  it  is  not 
actionable,  even  though  malicious  and 
wicked." 

1  Hunt  V.  Simonds,  19  Mo.  583;  Orr 
V.  Insurance  Co.,  12  La.  Ann.  255;  68 
Am.  Dec.  770. 

■•'  South  Royalton  Bank  v.  Suff«lk 
Bank,  27  Vt.  505.  The  discredit  cast 
on  state  scrip  by  the  state's  illegal  re- 
fusal to  receive  it  for  taxes  affords  no 
actionable  injury  to  a  holder  whose 
tender  has  not  been  refused,  or  who 
owes  no  taxes:  Hagood  v.  Southern, 
117  U.  S.  52.. 

*  Glendon  Iron  Co.  v,  Uhler,  75 
Pa.  St.  467;  15  Am.  Rep.  599. 


'R. 

Tliat  a 
rentier 
an   inji 
plaiiitii; 
doer: 
McEud, 
V.  Viiloi 
-  Em! 
V.  Whitd 
Hooper 
B;ikor. 
VVIiittoii 
Johns  r. 
Scrgo;ui( 
214;  Gl:i 
Weljb 
189,  Juil 
earlie.-ii 
laid  up 
tho  coinr 
is  a  wro 
dres^  it; 
damage 
otlier  iuji 
injured 
nominal 
docrine  i 


1713 


TORTS   IN   GENERAL. 


§1011 


and 
not 


176; 


which  ho  published  and  sold.  Held,  no  legal  cause  of  action: 
Dudley  v.  Bng(js,  141  ^lass.  582;  55  Am.  lUu.  404.  Dcfoiid- 
ant's  employers  refused  to  accept  an  order  hy  him  to  pay  his 
wages  to  plaintiff,  but  nevertheless  did  pny  for  some  time, 
when  tliey  notified  plaintiff  tliat  they  would  do  so  no  longer, 
and  made  payment  to  defendant.  Held,  that  (iio  receipt  of  the 
wages  by  defendant  was  not  a  tort  for  wloich  ]\o  was  liable  to 
plaintiff:  McGwire  v.  Kivdand,  56  Vt.  62. 

§  1011.  Injury  and  Damage  must  Concur.  —  A  wrong 
committed  by  the  dcfciidaut,  and  damage  ruffered  there- 
from by  the  plaintiif,  must  both  concur  to  entitle  the 
latter  to  his  action.*  But  in  many  cases,  from  the  com- 
mission of  the  wrong  the  law  implies  duuiage,  and  the 
plaintiff  is  not  obliged  to  sliownt.^  "  Damngo  in  the  sense 
of  the  law  may  arise  out  of  injuries  to  tho  person  or  to 
the  property  of  the  party,  as  any  wrongful  invasion  of 
either  is  a  violation  of  his  legal  rights,  wliich  it  is  the 
object  of  the  law  to  protect.  Thus  for  injuries  to  his 
health,  liberty,  or  reputation,  or  to  his  rights  of  property, 
personal  or  real,  the  law  has  furnished  the  appropriate 

*  Vi.  V.  Pagliam,  8  Barn.  &  C.  3G'J;     only  a  violation    of    a  right    of    tho 

That  an  act  was  WTongful  uoc^   not    plaintiff,  but  the  ;u  t  of  tho  defendant, 
render  it  actionable;   there   must  bo    if  continued,  may  Ijeconio  tho  founda- 


an  injury  resulting  from  it  to  the 
plaintiif  or  a  benefit  to  tho  wrong- 
doer: Morgan  v.  Bliss,  2  Mass.  Ill; 
MoEndrecr.  I'ilca,  G  Litt.  101;  Nichols 
I'.  Valentine,  3G  Me.  ^-22. 

-  Euil)rgy  V.  Owen,  GEx.  353;  Ashliy 
V.  Wiiitc,  2  Ld.  Kaym.  \W',S;  Clifton  i\ 
Hooper,  G  Q.  B.  4G8;  Blauchard  r. 
Baker,  SGreonl.  253; '23  Am.  Dee.  5;)4 
Wliittemoro  r.  Cutter,  1  (Jail.  42'.(,  48;); 
Johns  c.  Stevens,  3  Vt.  308;  Ripka  r. 
Sergeant,  7  Watts  &  S.  9;  42  Am.  Duo. 
2!4;Gladu>!ter  v.  Walker,  40  Md.  1; 
Webb  r.  Manufacturing  Co.,  3  Sum. 
189,  Judge  Story  saying:  "From  my 
earliest  reading,  I  have  considered  it 
laid  up  among  tl'.o  very  elements  of 
tho  common  law,  that  whenever  there 
is  a  wrong,  tliere  is  a  remedy  to  re- 
dress it;  and  tliat  every  injury  imports 
damage  in  the  nature  of  it,  and  it  no 
otiicr  injury  is  established,  the  party 


tion,  by  lapse  of  time,  of  an  adverse 
right  in  the  def'udanty  for  then  it 
assumes  the  char.ieter,  not  merely  of 
a  violation  of  riglif,  tending  to  dimin- 
ish its  value,  but  il  ^oes  to  the  absolute 
destruction  and  c::unguishment  of  it. 
Under  such  circr.;iistauees,  unless  tho 
party  injured  can  protect  his  right 
from  such  violatioii  by  an  action,  it  is 
plain  that  it  may  bo  lost  or  destroyed 
without  any  posijiilu  remedial  redress. 
In  my  judgment,  tlie  common  law 
countenances  no  -nch  inconsistency, 
not  to  call  it  by  a  stronger  name. 
Actual  perceptibi;  <lamago  is  not  in- 
dispensable as  th..-  foundation  of  an 
action.  The  law  tuloratea  no  further 
inquiry  than  whoili-jr  there  has  been 
the  violation  of  a  right.  If  so,  tho 
party  injured  is  entitled  to  maintain 
his  action  for  nominal  damages,  in 
vindication  of  his    right,  if  no  other 


ii^ured    is    entitled  to  a  verdict  for    damages  are  lit  and  proper  to  rcmu- 

nominal     damages.     A  fortiori,   this     nerate  him," 

docrine  applies   where  there    is  uot 

108 


1012 


PERSONAL  ■WRONGS. 


1714 


remedies.  The  former  are  violations  of  the  absolute 
rights  of  the  person  from  which  damage  results  as  a  legal 
consequence.  As  to  the  latter,  the  party  aggrieved  must 
not  only  establish  that  the  alleged  tort  or  trespass  has 
been  committed,  but  must  aver  or  prove  his  right  or 
interest  in  the  property  or  thing  affected  before  ho  can 
be  deemed  to  have  sustained  damages  for  which  an  action 
will  lie."* 


§  1012.  Damnum  absque  Injuria  —  Lawful  Exercise  of 
One's  Right.  —  The  lawful  exercise  of  one's  own  rights  can- 
not make  one  liable  for  its  injurious  effect  on  another. 
It  is  damnum  absque  injuria  if  through  the  lawful  and 
proper  exercise  by  one  man  of  his  own  rights  a  damage 
results  to  another,  even  though  he  might  have  anticipated 
the  result  and  avoided  it.  That  which  is  right  and  law- 
ful for  one  man  to  do  cannot  furnish  the  foundation  for 
an  action  in  favor  of  another.'^  No  action  lies  for  exclud- 
ing a  man  from  his  wife's  funeral  upon  the  premises  of 
the  defendant;*  nor  by  the  owner  of  a  house  against  one 
who  maliciously  refuses  to  emj^loy  any  tenant  of  such 
house,  and  thus  prevents  the  renting;  *  nor  for  eating  a 
portion  of  some  meat  furnished  by  a  dealer,  but  not  paid 
for,  and  returned,  so  far  as  unimpaired,  on  account  of  a 
disagreement  as  to  the  price;  ^  nor  for  the  posting  of  a 
malicious  notice  by  an  employer  forbidding  his  employees 
to  trade  with  the  defendant; '^    nor  against  a  witness  for 


'Nelson,  C.  J., in  Hutchins  v.  Hutch- 
ins,  7  Hill,  105. 

'•'  Cooluy  on  Torts,  81;  Aldred's  Case, 
9  Co.  Lit.  5S  I);  Acton  v.  Blnndell,  12 
Mees.  &  W.  .350;  Chasemore  v.  Rich- 
ards, 2  Hurl.  &  N.  1G8;  7  H.  L.  ('as. 
749;  Now  River  Co..t).  Johnson,  2  El.  & 
E.  4;}.");  CHiarles  River  Bridge  v.  War- 
ren Bridge,  7  Pick.  344;  11  Pet.  420; 
Roatii  r.  Driscoll,  20  Conn.  .')33;  52 
Am.  Dec.  352;  Chatfield  v.  Wilson, 
28  Vt.  4t);  Frazier  v.  Brown,  12  Ohio 
St.  294;  Wheatley  v.  Baugh,  25  Pa. 
St.  52S;  04  Am.  Dec.  721. 


^Neilson  v.  Brown,  13  R.  I.  651; 
43  Am.  Rep.  58. 

«  lieywood  v.  Tillson,  75  Me.  225; 
40  Am.  Rep.  373. 

'■>  Finch  V.  Brian,  44  Mich.  517. 

"Payne  v.  R.  R.  Co.,  13  Lea,  507; 
49  Am.  Rep.  CG(),  the  court  saying: 
"  PlaiutitF  ajipcals  with  confidence  to 
the  legal  maxim,  There  is  no  wrong 
without  its  remedy.  Far  bo  it  from 
us  to  shake  the  public  and  professional 
contldence  in  this  venerable  maxim  of 
the  English  common  law;  ....  but 
as  it  is  a  legal  maxim,  it  must  be  taken 


1714 


1715 


TORTS   IN    GENERAL. 


1012 


solute 
,  legal 
must 
;s  has 
^ht  or 
lie  can 
action 


rcise  of 

its  can- 
nothcr. 
ful  and 
damage 
icipated 
nd  law- 
tion  for 
f  exclud- 
mises  of 
inst  one 
of  such 
eating  a 
not  paid 
ant  of  a 
ing  of  a 
inploj'^es 
Itness  for 

R.  I.    651; 

?5  Me.  225; 

xh.  517. 
h^  Lea,  507; 
Imrt  saying: 
Tjoiitidence  to 
U  no  wrong 
|r  bo  it  from 
I  professional 
|)lc  maxim  of 

[uat  be  taken 


giving  false  evidence  in  a  case,'  until  he  has  been  con- 
victed of  perjury;^  nor  for  having  suborned  a  witness  to 
swear  falsely,  whereby  a  judgment  was  unjustly  obtained;^ 
nor  against  his  adversary  for  a  false  oath  before  an  auditor, 
though  it  secured  him  a  favorable  judgment;^  nor  for 
citing  plaintiff  to  attend  the  taking  of  defendant's  depo- 
sition to  be  read  on  the  trial  of  an  action  between  the 
parties,  where  defendant  failed  to  appear  and  give  the 
deposition,  and  plaintiff  was  put  to  useless  expense  by 
attending;^  nor  for  receiving  and  assisting  a  debtor  who 
has  escaped  from  an  oflicer  who  has  arrested  him  on  a 
ca.  sa.;"  nor  for  money  expended  in  a  successful  defense 


in  a  legal  sense.  So  taken,  obviously, 
it  can  mean  no  more  than  that  tlioro  is 
a  legal  remedy  for  every  legal  wrong, 
i.  0.,  every  injury  sufl'ered  of  an  un- 
lawful act,  or  a  lawful  act  done  in  an 
unlawful  manner.  Neither  is  shown 
here.  Defendants  have  merely  warned 
their  employees  not  to  trade  M'ith 
plaiutifif;  if  they  do,  they  must  give 
up  tlieir  employment.  They  had  the 
right  to  discharge  thenj  on  this 
ground;  it  was  not  wrong,  but  highly 
proper,  to  give  the  employees  notice 
of  the  intention  of  the  company. 
The  manner  of  giving  the  warning 
was  not  unlawful.  The  posted 
notice  contained  no  word  of  libel 
or  reproach  upon  the  character  of 
plaintiff;  no  cliarge  or  iusiimation 
that  he  was  unfair  in  his  dealings. 
Ouutting  any  attack  on  plaintiff's 
character  as  a  man  or  trader,  defend- 
ants, in  the  usual  manner,  told  its  cm- 
plojees  to  stop  trading  with  plaintiff, 
or  to  quit  working  for  them.  Tne 
common  law  does  not  forbid  such  an 
act,  nor  has  it  been  made  unLiwful  by 
statute,  as  has  been  done  in  some 
of  the  states,  and  probably  in  Eng- 
land. No  legal  wrong  has  boon 
done;  therefore,  there  is  no  legal 
remedy.  Courts  administering  tlio 
civil  law  cannot  punish  sin  or 
wickedness,  unless  it  be  couunitted  in 
violation  of  the  civil  law,  wliich  is  the 
measure  of  their  jurisdiction.  Nor 
will  the  maxim,  *SVc  uteretuout  aUtnuin 
lion  Lcdcia,  aid  the  plaintiff  in  his  con- 


tention. As  commonly  translated, 
'  Scj  use  your  own  as  not  to  injure 
another's,  it  is  doubtless  an  orthodox 
moral  precept;  and  in  the  law,  too, 
it  finds  frequent  application  to  the  use 
of  surface  and  running  water,  and 
indeed,  generally,  to  casements  and 
servitudes.  But  strictly,  even  then 
it  c;tu  mean  only,  '  So  use  your  own 
tliat  j'ou  do  no  legal  damage  to 
another's.'  Legal  damage,  actionable 
injury,  results  only  from  an  unlawful 
O'^t;  and  paraphrased,  means  no  more 
than,  '  Thou  shalt  not  "interf(u-e  with 
the  legal  rights  of  another  by  the  com- 
mission of  an  mdawful  act.'  A  ma- 
jority of  the  court,  therefore,  concludo 
that  tho  act  done,  i.  e.,  the  pu1)licatioa 
of  the  notice  that  the  company  would 
discharge  employees  who  traded  with 
plaintiff,  was  not  an  unlawful  threat 
nor  an  uul;a\  ful  act;  was  not  a  libel; 
and  though  done  wickedly  and  mali- 
ciously, is  ^itiil  not  actionable,  because 
it  was  not  an  unlawful  act,  nor  an  act 
donu  in  an  unlawful  manner." 

'  (rrove  ;•.  IJrandenburg,  7  Blackf. 
234. 

•^  Page  ?".  Camp,  Kirby,  7. 

^  Bostwick  r.  Lewis,  2  Day,  447; 
Smith  r.  Lewis,  3  Johns.  157;  3 
Am.  Dec.  4ti'.);  Taylor  v.  Bidell,  05 
Cal.  4S!);  Stevens  v.  Rowe,  5i)  N.  H. 
57S;  47  Am.  Rep.  231. 

*  Curtis  r.  Fairbanks,  IG  N.  H.  542. 

■'  Feltt  V.  Davis,  40  Vt.  151. 

®  Seehorn  r.  Darwin,  1  Treadw. 
Const.  lOG;  3  Brev.  282. 


§  1012 


PERSONAL  WRONGS. 


1716 


nffaiiist  an  indictment  or  action;*  nor  for  false  represen- 
tations to  a  justice  of  the  peace,  whereby  ho  was  induced 
to  marry  an  infant,  and  was  prosecuted  and  fined  there- 
for;- nor  a,i:;ainst  a  judgment  creditor  for  an  injury  caused 
by  t]ie  manner  in  which  the  oflicer  executes  the  writ 
of  execution;'*  nor  against  an  obligee  for  detaining  the 
bond  after  it  is  paid;''  nor  for  obtaining  a  decreee  in 
chancery  by  means  of  false  and  forged  evidence;'^  nor  to 
recover  back  an  unreasonable  amount  of  costs  which  liave 
been  taxed  and  paid."  An  arbitrator  is  not  liable  to  an 
action  by  one  party  for  fraudulently  conspiring  with  the 
alturney  of  the  other  party  to  induce  the  other  arbitra- 
tors to  join  him  in  an  unjust  award;  but  the  attorney 
is  liable,  although  the  judgment  on  the  award  remains 
unreversed.'^ 

An  action  of  trespass  or  case  will  not  lie  by  one  who 
has  been  disturbed  in  a  nocturnal  interview  in  the  woods 
with  a  femak';^  nor  is  a  railroad  conductor  permitting  a 
passenger  to  travel  on  his  train  with  stolen  goods,  and 
then  escape,  liable  to  the  owner;"  nor  is  an  owner  of  land 
liable  in  damages  because  the  branches  of  one  of  his 
trees  overlays  his  neighbor's  land.'"  A  church  sexton  who 
refuses  to  stop  the  ringing  of  the  church  bell  for  the  usual 
services  is  not  liable  to  a  person  suffering  from  sunstroke 
in  an  adjacent  house,  who  is  thrown  thereby  into  convul- 
sions, which  retard  his  recovery."  A  person  who,  by  false 
representations  that  he  is  qualified  to  serve  civil  process, 
induces  another  to  commit  a  writ  to  him  for  service  is 
not  liable  to  an  action  for  neglecting  to  serve  it.'"    An 

»  Fleet   r.    Mclntire,    1    N.   J.   L.     O'Brien,  137  Mass.  424;  SO  Am.  Rep. 
101 ;  Taylor  r.  Wilson,  1  N.  J.  L.  302.     32;i 


See  Malicioua  rrosecution,  po^(. 

-  Hiirvey  r.  IJusIi,  3  N.  J.  L.  975. 

^  Bcaiuuout  V.  Dimn,   4  N.    J.  L. 
lOG. 

*  Winants  v.  Denmaii,  2N.  J.  L.  124. 

"  Peck  r.  Wooabridi'e,  3  Day,  30. 

6  Allen  v.  Hickson,  0  N.  J.  L.  409. 

^  Hoosac  Tunuel  Dock  etc.   Co.  v. 


*  Lakin  v.  Gun,  Wright,  14. 

9  Ilandlette /•.  Judkins,  77  Me.  114; 
52  Am.  Rep.  747. 

'"  Countryman  v.  Lighthill,  24  Hun, 
405. 

11  Rogers  v.  Elliott,  140  Mass.  349. 

''^  Whitney  v.  Blanchard,  2  Gray, 
208. 


'  McCa 
44"' 

^'"Coole' 


1717 


TORTS   IN   GENERAL. 


§  1013 


I 
Rep. 

114; 

Hun, 

349. 
Gray, 


unwarranted  iutcrferenco  between  contracting  parties  will 
not  create  a  cause  of  action,  unless  actuated  by  fraud  or 
malice.^ 

Illustrations.  —  The  defendants,  after  a  will  had  been  made 
and  executed  devising  certain  real  estate  to  A,  conspiroil  with 
each  other  to  induce  the  testator  to  revoke  it,  and  ofTected  their 
object  by  means  of  false  and  fraudulent  representations.  Ilcldy 
that  A  could  not  maintain  an  action,  as  the  revocation  of  the 
will  merely  deprived  him  of  an  expected  gratuity,  and  did  not 
interfere  with  any  of  his  rights:  Ilutchins  v.  Ilutcliins,  7  IliLl, 
105.  A  sheriff  was  induced,  by  defendant's  misrepresentations, 
to  accept  a  check  instead  of  cash  for  property  sold  on  execu- 
tion, and  on  failure  to  pay  over  in  cash,  was  imprisoned  for 
contempt.  Held,  that  he  could  not  recover  damages  from  de- 
fendant on  the  ground  that  the  latter's  fraudulent  conduct 
induced  him  to  violate  his  duty:  McLendon  v.  IlarrcU,  G?  C!a. 
440.  Shortly  after  A  had  commenced  the  erection  of  a  house 
in  tlio  town  of  Cr.,  the  town  authorities  passed  an  ordinance 
declaring  it  a  nuisance  to  erect  buildings  of  a  certain  character 
in  certain  portions  of  the  town,  and  the  provisions  of  the  ordi- 
nance included  A's  house.  In  an  action  by  A  against  B,  tho 
mayor  of  tho  town  of  G.,  to  recover  damages  for  preventing  A 
from  erecting  the  house,  held,  that  tho  defendant  was  not  liable: 
Pricclt  v.  Whitakcr,  73  N.  C.  554.  A  railroad  company  mado 
a  rule  that  draymen  should  not  enter  its  warehouse,  but  should 
receive  goods  from  the  platform,  whereupon  a  drayman's  em- 
ployer discharged  him.  Held,  that  tho  drayman  hdd  no  right 
of  action  against  the  railroad  company:  Donovan  v.  li.  R.  Co., 
64  Tex.  511).  An  administrator  brought  an  action  against  a 
railroad  company  for  negligently  running  over  and  mutilating 
tho  dead  body  of  his  intestate,  and  for  the  destruction  of  tho 
wearing  apparel  in  which  it  was  clad.  Held,  that  for  tho  run- 
ning over  and  mutilation  there  was  no  right  of  action,  but  that 
for  tho  destruction  of  the  wearing  apparel  a  right  of  action 
existed:  Griffith  v.  R.  R.  Co.,  23  B.  C.  25;  55  Ani.  Rep.  1.  Tho 
proprietor  of  a  theater  advertises  the  price  of  resci*ved  seats  for 
certain  j)crformances;  he  afterwards  refuses  to  sell  certain  f^cuts 
demanded.  Held,  that  ho  is  not  liable  to  an  action:  Pcarcc  v. 
Spalding,  12  Mo.  App.  141. 

§  1013.  Accident. — A  person  is  not  liable  for  an  ac- 
cidental injury.^     Where  an    accident   happens  entirely 

»  McCauu  V.   WolflF,   28  Mo.  App.     dall,  G  Cush.  292;   Durham  v.  Mussel- 

447.  man,  2  Blackf.  9G;    18  Am.   Dec.  i:53; 

^  Cooley  ou  Torta,  80;  Brown  v.  J£eu-    Lehigh  Bridge  Co.  v.  Lehigh  Coal  Co. , 


§  1013 


PERSONAL  WRONOS. 


1718 


from  a  superior  agency,  and  without  default  on  the  part 
of  the  defendant,  or  blame  imputable  to  him,  an  action  for 
iujiu'y  resulting  from  such  accident  is  not  maintainable.* 
An  accident  is  defined  as  an  event  happening  unexpect- 
edly and  without  fault.  Thus  one  is  not  liable  who  drives 
against  another  by  getting  on  the  wrong  side  of  the  road 
in  a  dark  night,^  or  by  pulling  the  wrong  rein  by  mis- 
take.'' So  one  is  not  liable  for  an  accident  or  injury  to 
person  or  property  caused  by  Ids  horso  while  unman- 
ageable or  running  away  without  his  fault.'*  A  person 
whose  pistol  goes  off  by  accident  and  injures  another  is 
not  liable  therefor.^  The  owner  of  a  steam-boiler  oper- 
ated upon  his  own  premises  in  a  lawful  manner  is  not 


4  Ravrlc,  9;  20  Am.  Dec.  Ill;  Vin- 
cent i:  Stiuchour,  7  Vt.  02;  2'J  Am. 
Dec.  145;  Bizzcll  v.  Booker,  IG  Ark. 
308;  Norris  v.  LitchticlJ,  35  N.  U. 
271;  09  Am.  Dec.  540;  Gaulfc  v. 
Humes,  20  Md.  297;  Robinsoc  v. 
R.  R.  Co.,  32  Mich.  322;  Toledo 
etc.  K.R.  Co.  V.  Daniels,  21  Ind.  102; 
ludlauapolia  etc.  R.  R.  Co.  r.  Truitt, 
24  Ind.  102;  P.  C.  &  S.  R.  R.  Co.  v. 
Smith,  20  Ohio  St.  124;  Burton  v. 
Davis,  1')  Ln.  Ann.  44S;  Brown  v. 
CoUiny,  53  N.  H.  442;  10  Am.  Rep. 
372;  ilaulon  tJ.  Ingram,  3  Iowa,  81; 
llorris  v.  Piatt,  32  Conn.  75;  Weaver 
V.  Ward,  Hob.  134;  Gibbons  v.  Pop- 
per, 1  Ld.  Raym.  38;  Lloyd  n  Ogleby, 

5  Com.  B.,  N.  S.,  007;  Cotton  v.  Wood, 
8  Com.  B.,  N.  S.,  500;  Hamraack  v. 
White,  11  Com.  B.,N.  S.,  588;  Ald.r- 
son  V.  Waistell,  I  Car.  &  K.  357; 
Holmes  r.  Matlier,  L.  R.  lOE.x.  201;  10 
Am.  Rep.  384;  Dygeit  v.  BraiUey,  8 
Wend.  409;  Loaeei'.  Buchanan,  51  N. 
Y.  47(i;  10  Am.  Rep.  023;  Ckrk  v. 
Font,  8  Johns.  421;  Sheldon  v.  Sher- 
man, 42  N.  Y.  484;  1  Am.  Rep.  509; 
Wilson  r.  Rockland  Mfg.  Co.,  2  Harr, 
(Del.)  07;  Spencer  v.  Campbell,  9 
Watts  &  S.  32;  Boyntou  v.  Recs,  9 
Pick.  527;  Rockwood  v.  Wilson,  11 
Cu.sli.  221;  Toledo  etc.  R.  R.  Co.  v. 
Joncj!,  70  m.  311;  Chicago  etc.  R. 
R.  Co.  i:  Jacobs,  03  111.  17S;  Strouse 
V.  Whittlesey,  41  Conn.  559.  The 
old  h'.w  was  more  severe:  See  article 
of  Jud£;o  Holmes  iu  American  Law  Re- 


view, January,  1880;  and  see  Jennings 
V.  Fundcburg,  4  McCord,  101.  There 
arc  some  cases  where  a  person  is  an 
insurer,  and  the  question  of  negligence 
or  care  becomes  irrelevant  in  de- 
ciding his  responsibility;  thus,  for 
example,  a  common  carrier,  an  inn- 
keeper, the  keeper  of  dangerous 
aniiuals,  the  keeper  of  dangerous 
articles;  so  where  the  accident  re- 
sults from  the  doing  of  a  wrongful 
act.  These  topics  and  liabilities  are 
discussed  elsewhere  in  this  work. 
vSeo  Titles  Bailments,  Animals,  Neg- 
ligence; and  Bee  Assault,  poiit. 

'Gault  V.  Humes,  20  Md.  297; 
Vincent  v.  Stinehour,  7  Vt.  02;  29 
Am.  Dec.  145;  Harvey  r.  Dunlop, 
Hill  &  D.  193.  Where  an  action  is 
brought  to  recover  diimuges  on  ac- 
count of  injury  done  by  the  acciden- 
tal falling  of  a  structure,  proof  that 
there  was  no  fault  or  uegligencu  im- 
putable to  the  defendant,  and  that 
there  was  no  original  imperfection  iu 
tho  structure,  is  BuQicienfc  to  avoid 
liability  on  Ids  part:  Burton  ?•.  Davis, 
15  La.  Ann.  448. 

^  Lcame  v.  Bray,  3  East,  593. 

'  Wakeman    v,    Robinson,   1 
213. 

*  Brown  v.  Collins,  53  N.  II. 
IG.  Am.    Rep.    372;    Ilulmes  r. 
thcr,  10  Am.    Rep.    384;  Vincent  v. 
Stinehour,   7   Vt.   02;   29  Am.   Dec. 
145. 
,_^J  Sutton  V.  Bennett,  114  Ind,  243. 


Bing. 

412; 
Ma- 


1719 


TORTS   IN    GENERAL. 


§  1014 


297; 
29 
lop, 

oil  ia 
ac- 

idcn- 
that 
I  iin- 
tlut 
u  iu 

avoiil 


412; 

.Ma- 

nt  V. 

Dec. 


liable,  \ntbout  proof  of  nogligcnco,to  aa  adjoining  owner 
for  damage  done  to  his  property  by  reason  of  an  acci- 
dental explosion  of  such  boiler/  The  owner  of  property 
which,  without  his  consent,  is  carried  by  flood  or  storm 
down  a  stream,  and  deposited  upon  the  land.-i  of  another, 
is  not  liable  for  any  damage  occasioned,  unless  ho  reclaim 
the  property.'^  Encamping  and  hunting  upon  the  public 
lands  in  a  "wilderness"  district  is  not  such  an  illegal 
and  mischevious  act  as  will  render  the  person  responsible 
for  all  injury  that  may  result  to  others,  regardless  of 
diligence,  care,  or  prudence  on  his  part  to  prevent  such 
injury.'' 

§  1014.  Public  Injury.  —  For  an  injury  which  tho 
party  complainant  suffers  only  as  tho  rest  of  tho  public 
suffer,  —  that  is,  for  a  j^ublic  injury  as  distinct  from  a 
private  one,  —  the  law  gives  no  right  of  action.'*  But  if 
ho  suffers  special  injury,  —  that  is,  over  and  above  what 
tho  public  suffer,  —  then,  though  tho  act  is  also  a  crime,  ho 
has  a  remedy  for  damages.'^  "  Nor  is  it  any  objection  to 
private  actions  that  several  may  suffer  special  injuries 
from  the  same  public  offense.  If  many  persons  receive  a 
private  injury  from  a  public  nuisance,  every  man  shall 
have  his  action,  tho   test  in   each   case   being,  not   tho 

6»; 


*  Losco  V.  Baclianan,   51  N.  Y.  47G; 

10  Am.  Kcp.  (i-'S.     Buteco  Wilson  n 
City  of  N.  w  Boilfonl,   lOS  Mass.  201; 

11  All).  Rep.  o'yJ;  aiul  Cabillr.  Eust- 
uiuu,  18  J.Imn.  .'524;  10  Am.  Hep.  ISt. 

-  Mieldou  ,'.  Slicrmuii,  42  N.  Y.  481; 
1  Am.  jiop.  .OGl);  Livezcy  v.  riiilailcl- 
pliiu,  Gt  I'a.  Hi.  K)G;  :i  Am.  Hop.  578. 

'  Bizzell  v.  Bookor,  IG  Ark.  ;J08. 

*  C'ooli'V  on  Torts,  ^8;  Gates  v.  Bliii- 
coe,  2  Dana,'  l."S;  2G  Am.  Deo.  410; 
Croiiunelin  r.  Coxe,  30  Ala.  318;  GS 
Am.  Dee.  120;  .Seoly  r.  Bishop,  I'J 
Conn.  128;  Baxter  r.  Wiuooski  &  Co., 
22  Vt.  114;  r>l  Am.  Dee.  84;  Vuuard 
V.  Cross,  8  Kau.  248;  Lansing  v. 
SmiLli,  4  Wenil.  1);  21  Am.  Dee.  89; 
Colo  V.  Spi'owl,  35  Me.  101;  50  Ann- 
Dec.  G9G;  Yolo  Co.  c.  Sacramento,  Ii6 
Cal.   193;    Crook  v.  Pilclier,  Gl  Md. 


510;  Powell  r.  Bon^'■er,    91    Ind. 
Morini  1'.  Graham,  07  Cal.  1150. 

"Cooley  on  Torts,  80;  Burrows  v. 
Pixley,  I  Root,  .SGJ;  1  Ain.  Dee.  50; 
Marnot  r.  Stanley,  1  Man.  &  G. 
5GS;  Shulto  r.  'rransfcr  Co.,  50 
C.d.  592;  Abbott  r.  Mills,  3  Vt.  521; 
23  Am.  Dec.  222;  Mills  r.  Hall,  9 
V.'end.  315;  24  Am.  Dec.  IGO;  Mycra 
V.  Malcolm,  G  Hill,  202;  41  Am.  Dec. 
744;  Fort  Plain  Bn:l'^eCn.  r.  Smith, 
30  N.  Y.  G2;  Stei-nn  r.  Faxon,  19 
Pick.  147;  31  Am.  Dee.  12.3,  ami  note; 
Colo  r.  iSprowl,  35  }*Io.  101;  ."0  Am. 
Dec.  GOG;  Thayer  ?'.  Boston,  10  Pick. 
511;  31  Am.  Dee.  157;  Euo^  v. 
H.imilton,  27  Wia.  250;  llouek  v. 
Wachter.  .34  Md.  205;  G  Am.  Rep. 
3.32;  Colburn  v.  Ames,  52  Cal.  3S5; 
28  Am.  Hep.  C34. 


§  1015 


PEnSONAL  AvnoNog. 


1720 


1721 


miinbur  injur  1,  1(Ut  tho  spcrial  and  porsonul  clmructrT  of 
the  injury.  A  j»irson  nuiy  dam  a  navij;al»lo  stioajn  so  aa 
to  ruin  it  ns  a  liii^Iiway,  and  in  so  doinir  may  injure  tho 
sovorul  inillcr  wiio  woro  uccu.stonicd  to  make  use  of  its 
water  for  opcial  ing  their  niachini'ry.  Jlowi^ver  numerous 
these  miller  may  be,  they  d)  not  in  the  a,i;i;r(\L;ato  eou- 
stitule  tlie  pid  lie;  and,  in  a  k'l,' il  sense,  ncillur  tliepuljlic 
nor  any  otlii  r  individual  is  eoneorncd  with  the  speeial 
damage  wliieh  each  of  their  number  sustains."' 

§  1015.  V.'Ucn  Tort  also  a  Crime.  —  In  Enfj;land,  wlion 
the  aet  causiiijj  llio  injury  is  also  an  oilense  against  tho 
criminal  hus%  I  ho  oircnse  musu  lirst  be  2)rosccuted  before 
the  offender  can  be  sued.  "  The  law  requires  that  before 
tho  party  injared  by  any  felonious  act  can  seek  civil  re- 
dress for  it,  the  matter  sliould  be  disposed  of  before  tho 
proper  criminal  tribunal,  in  order  that  the  justice  of  tho 
country  may  bo  lirst  satisfied  in  respect  to  the  })ublie  of- 
fense; and  af^r  a  verdict,  either  of  acquittal  or  eonviction, 
a  civil  action  may  bo  maintained.""  But  this  is  not  re- 
quired in  thv'  United  States;  tlie  civil  suit  and  tho  crimi- 
nal prosecution  may  go  on  together,  or  the  one  may  be 
brought  witiiuufc  the  other.^     In  an  action  to  recover  tho 

'  Cooluy  ouTorls,  87;  citing  Ashby  i.i  uuspciuled  until  a  criminal  i)ro.socu- 

7'.  Wliito,  2Ld.  ilnyiii.  9.38;  Hculoy /'.  tioii  luaboon  coiunicueccl  aml(li-:po.ioil 

Lyiiio    Kcfi'i.s,    5  iiiii;'.  91;     3    Burn,  of,   'is  liiiiiteil  to  larcuiiiivs  aiiil  l)ur- 

&  Adol.  77;  Nicho'l  v.  Allen,    1    Bojfc  glarios.'     i ho  Kuniu  opinion  luul  before 

&  S.  i)l)li;  MeKin,i:>ii /'.  Pcnson,  8  Ex.  been  expre-^seJ   in  lioiirilinun  /•.  (iore, 

;il'J;  King?',  lliului.'ds    8  Term  Rep.  l.")M  is.s.  3:51.   In  Boston  cL  .  R.  U.  Co. 

(hW.      Anil   seu    lj;uuing  v.   Smith,  4  v.    Uiuui,    1    Crray,  Ki,   wbero  Ibo  «le- 

\Ven(l.  9;  'Jl  Am.  Uce.  89.  femlant   luul  nuido    himselE  eonipara- 

■^  Crosby  y.  Lcn^-,  ]U  East,  407.  tively    rich     l.>y    Ktoaling     from    tho 

''  Hyatt  V.  AiLiMs,     10    Midi.   ISO;  ra!lrnail  company,  tho  (pie.stion    -was 

Fo.ster    i\    Com.,  8  Watts    &    S.    T7;  fully  examined,  and   +.lii;  eonrt    held 

Bh-wsingamc  t".  (1  laves,  G  B.  Mon.  .38;  that  while  it  is  undoubtedly  the   law 

Hepburn's   Case,    '.\  Bland,   ll4;  AUi-  in  England  that  tho   civil  lemcily   of 

son /•.  Bank,  0  Itand.  'J04;  Ballcw    r.  tlie  party  injured  i)y  a  felony    i.^  trns- 

Alexander,   G   Ilaiupli.    433;   Quimby  ponded   till   after  tho    termination  of 

?'.  Biaekoy,    03   Is'.    IJ.   77;  Nowlan  v\  a   criminal    prosecution    again.st    tho 

Griliin,  (IS  Me.  '2.'ij;  li8  Am.  Rep.  4.5,  offender,  such  bad  never  beon  the  law 

the    eourt    saying:      "In    Bootly    v.  here.     And    such    is    the    prevailing 

Keating,    4    Me.   1()4,    and  again    in  opinion  in  this  country:    ]i.  &  W.  R. 

Crowell  r.  Mernck,    19  Mo.  392,  the  R.  Co.  r.  Dana,  1  dray,  8.3;  BettingiU 

court  say   that  tlio  rule  that  a  civil  r.  Riedout,  G  jST.  H.  454;  'J5  i\.m.  Doc. 

actiou  iu  behalf  of  tho  party  injured  473;   Pi&catacjua  Bauk   c.   Turuley,  1 


Value 

plain 

actioi 

inal  j 

result 

ous  w; 

to  a  A 

viousi 

faiJun 

§  IC 
mon  L 
deatli 
death  i 
itself, 
for  an 
scrvico 
jury  an 
pcnses 
commo] 
careless 
tained, 
the  inju 
couid  \k 
society, 

Mile.*!,  .SI" 
90;  I  Ak.i.  I 
IN. J  L.i 
I14;All!so; 
223;\V|Hto 

insou  r.  C 
Story  /•.  II  , 
lew  V.  Alux 

ton/\  Vo^rl, 
Gore,  ].j  M; 
19  OJiio  Nt. 
*  Houk  r. 
2  Am.  R,.n. 

65  Ga.  235 

'  Bdkcr  .;.. 
fiiiiH  r.  Butel 
H.  Co,,  1  ('„ 
Hubgh  y.  li, 


1721 


TORTS    IN   OENEHAL. 


glOlO 


-was 

held 

l;iw 

I'ly  tit 

lioii  of 
tho 
ki!  law 
lailing 

ItingiU 

Doc. 

Ley,  1 


vnliio  of  property  allogcd  to  havo  bison  stolon  frfun  tlio 
plaiiitiir  hy  llio  lU'lbmlant,  it  is  held  that  thu  right  of 
action  is  not  Husponilod  until  tho  dotormination  of  a  crim- 
inal prosocution  a<^'ainst  tlio  ofTi'ndor.'  But  a  lioinicido 
ro.suUin,Lf  I'roni  a  collision  of  trains  is  prima  /ao/c  feloni- 
ous within  a  statute  declaring  that  if  tho  injury  aiiinunts 
to  a  felony,  tho  person  injured  must  concurrently  or  pro- 
viouhly  prosecute  therefor,  or  allege  a  good  excuse  for 
failure  to  i)rosecute.^ 

§  1016.  Action  for  Causing  Death  —  No  Action  at  Com- 
mon Law.  —  No  action  lay  at  common  law  for  causing  tho 
death  of  a  human  being."''  The  act  which  caused  tho 
death  might  bo  Iho  subject  of  lui  action,  but  not  the  death 
itsell".  Thus  an  action  would  lie  by  a  pai'ont  or  master 
for  an  injury  to  a  child  causing  its  death  for  tho  loss  of 
service  during  tho  time  between  tho  receiving  of  the  in- 
jury and  its  death,  and  also  for  medical  attendance,  ex- 
penses of  nursing,  etc.,  during  that  time.'*  An  action  at 
common  law  by  a  husband  for  tho  loss  of  his  wife,  ]»y  tho 
careless  and  negligent  act  of  a  third  party,  could  bo  sus- 
tained, where  some  period  intervened  between  the  time  of 
the  injury  and  tho  time  of  dissolution,  during  which  ho 
couid  l)e  said  to  have  suffered  tho  loss  of  her  services  and 
society,  and  incurred  expenses  and  undergone  anxiety 

Milosi,  .'{I'J;  Cross  r'.  Guthory,  2  Root,  Am.  Dec.  5G5;  Shieltls  v.  Yongo,  15 
90;  1  Aw.  IK^c.  lil;  Pattou  r.  Freeman,  Ga.  349;  GO  Am.  Doc.  (iOS;  Lo:i.;  v. 
IN.  J  L.  I  K'silL'pburn'aCaso,  3Blaud,  Morrison,  14  Iiul.  5'.).');  77  Am.  l>,c 
114;  Allison  r.  Farmers'  Bank,  GRand,  73;  Edgar  r.  C'astello,  14  S.  ('.  '.:  i;  37 
223;  Winter.  Fort,  3 Hawks, 251; Rob-  Am.  Rrp.  714;  Chicago  etc.  K  l!  Co. 
iusou  r.  Culp,  1  Const.  (S.  C.)  231;  r.  SchrofHtcr,  IS  111.  Ai'p.  32S;  Hull  nul 
Story  r.  II  uuMicmd,  4  Ohio,  370;  Bal-  v.  R.  R.  Co.,  144  Ma.ss.  4lj.  This 
lew  r.  Alc.xaiulcr,  G  Humph.  433;  Lof-  principle  is  so  well  settled  tlui*-.  Ilio 
ton/".  Vo:;l.'.s,  17Iiul.  10.");  Ik)ardmani7.  numerous  cases  in  which  it  i.i  laid 
Gori',  15  Mass.  331;  Howie  v.  Minuick, 
19  Ohio  St.  4U2;  2  Am.  Rep.  413." 

1  Houk  r.  Minuick,  19 Ohio  St.  4G2; 
2  Am.  K("i>.  4i.3. 

^  \^'e  I   rnetc.  R.  R.  Co.  v.  Sawtell, 
G5  Cra.  211.5. 

3  Ikkor  ('.  lioltou,  1  Camp.  493;  Hig- 
gins  r.  15\itclifr,  Yol.  89;  Carey  v.  R. 

R.  Co.,  1  Cu.sh.  475;  48  Am.  Dec.  GIG;     Adams,  IG  Miah.  ISO. 
Hubght;.  R.  R.  Co.,  6 La.  Aim.  495;  54 


down  need  not  bo  cited:  See  2  Timitip- 
son  on  Negligence,  p.  1272,  s  c  72, 
wherolhc  authorities  an-'  coUcccd;  liut 
see  Sullivan  v.  R.  R.  Co.,  3  Dill.  :'i;j4; 
Cutting  r.  Seabury,  1  Spraguc,  '>.:2. 

*Osl)orn  V.  Gillett,  L.  R.  8  \:\.  88; 
Covington  etc.  R.  R.  Co.  r.  Packer,  9 
Bush,  455;  15  Am.  Rep.  725;  Hyatt  v. 


§1017 


PEBSONAL  WBONGS. 


1722 


172 


and  distress  on  her  account/  So  where  a  passenger  is 
negligently  "killed  by  a  railroad  company  his  personal 
representatives  could  sue  for  the  damage  to  liis  personal 
estate  arising  in  his  lifetime,  from  medical  expenses,  and 
loss  to  his  business  by  his  inability  to  attend  to  it.'^ 

§  1017.  The  Statutory  Remedy. — But  a  statute  in 
England,  known  as  Lord  Campbell's  act,^  entitled  "  An 
act  for  the  purpose  of  compensating  families  of  persons 
killed  by  accidents,"  reciting  that  "  no  action  at  law  is 
now  maintainable  against  a  person  who,  by  his  wrongful 
act,  neglect,  or  default,  may  have  caused  the  death  of  an- 
other person,  and  it  is  oftentimes  right  and  expedient 
that  the  Avrong-doer  in  such  cases  shall  be  answerable  in 
damages  for  the  injury  so  caused  by  him,"  provided  that 
an  action  should  be  maintainable  against  a  person  caus- 
ing the  death  of  another  through  a  wrongful  act,  neglect, 
or  default,  and  though  it  was  a  felony;  the  action  to  be 
for  the  benefit  of  the  wife,  husband,  parent,  and  child, 
and  to  be  brought  in  the  name  of  the  executor  or  admin- 
istrator within  tweh'e  months  after  the  death.  Similar 
statutes  exist,  with  some  difference  of  detail,  in  most  of 
the  states.*  The  statutes  are  remedial  in  their  nature, 
and  should  be  liberally  construed.'^  They  include  corpo- 
rations causing  the  death,  as  well  as  natural  persons;*  and 
the  statutes  apply  to  marine  torts,  and  to  suits  against 


'Green  v.  R.  R.  Co.,  28  Barb.  169; 
How.  Pr.  230;  Eden  v.  R.  R.  Co.,  14  B. 
Men.  204;  Lucaa  v.  R.  K.  Co.,  21  Barb. 
245. 

-  Bradsliaw  v.  R.  R.  Co.,  L.  R.  10 
Com.  r.  ISO. 

»  0  &  10  Vict.,  c.  93. 

*  The  statutes  will  bo  found  col- 
lected in  2  Thompson  on  Negligence, 
sec.  9:.',  pp.  1294-1309. 

•'  Laniplicar  v.  Buckingham,33  Conn. 
237;  Beacli  v.  Bay  State  etc.  Co.,  10 
Abb.  Pr.  71;  Whitford  v.  R.  R.  Co., 
23  N.  Y.  405;  Haggerty  v.  R.  R.  Co., 
31  N.  J.  L.  349.    CoiUm,  holding  that 


they  are  peial,  and  should  bo  con- 
strued strictly:  Lexington  i\  Lewis, 
10  Bush,  077;  Board  v.  Scearce,  2  Du- 
vall,  570. 

«  Chicago  V.  Mayor.  18  III.  349;  Rail- 
way  Co.  r.  Wl'.itton's  Adiu'r,  13  Wall. 
270;  Southwestern  R.  11.  Co.  v.  Paulk, 
24  Ga.  350;  Louisville  etc.  R.  R.  Co.  p. 
Burke,  0  Cold.  45;  Baker  v.  Biiiloy,  16 
Barb.  54;  Donaldson  v.  R.  R.  Co.,  18 
Iowa,  2S0;  87  Am.  Dec.  391 ;  Pennsyl- 
vania etc.  R.  R.  Co.  ?>.  V'andivor,  42 
Pa.  St.  305;  82  Am.  Dec.  520;  Chicago 
V.  Starr,  42  III.  174;  89  Am.  Dec. 
422. 


vess 

or  t] 

rigb 
deat: 
negl. 
on  tl 
in  a 
time 
been 
Was  i 
autho 
are  U 
fering 
Both 
and  01 

§  10 
Lord  ( 
admin: 
of  mar 

"perso 
admini 


'  Steam 
522;  Tl 

'  McDo 
646;  33  A 
Btroiig  t\ 
^  JMann 
Holleul)oc 
Banci-oft 
Kennedy 
i25  Mass 
ran  v.  Ho] 
Hansford 
*  Muri)! 
184;  29  C 
^-  Co.  i\  ] 
V.  R.  R.  c 
^  R-  R.  Co 
R.  R.  Co., 
814. 

"  Needh; 
Contra,  IL,. 
380;  Couno 

•^  And  an 
pointed  to  I 


u 


1723 


TORTS   IN   GENERAL. 


§1018 


b;  Tlail- 

h  V/all. 

[•.  I'aulk, 
Co.  V. 

l\iloy,  16 
Co.,  18 

k'cnnsyl- 
ivcr,  42 
Chicago 
Dec. 


vessels  for  the  death  of  a  person  caused  by  the  negligence 
of  the  officers.^  Under  a  statute  of  New  York  giving  a 
right  of  action  for  wrongfully  or  negligently  causiug  the 
death  of  any  person,  an  action  may  bo  maintained  for 
negligently  causing  the  death  of  a  citizen  of  New  York 
on  the  high  seas,  on  a  vessel  hailing  from  and  registered 
in  a  New  Y''ork  port,  and  employed  by  the  owners  at  the 
time  in  their  own  business."  In  Massachusetts  it  has 
been  held  that  the  action  would  not  lie  where  the  death 
was  instantaneous;'  but  this  is  contrary  to  the  wciglit  of 
authority.*  AVhere  the  death  is  not  instantaneous,  there 
are  two  causes  of  action, — one  for  mental  and  bodily  suf- 
fering before  death,  and  the  other  for  the  loss  of  life. 
Both  may  be  Tjrosecuted  by  the  i)ersonal  representative, 
and  one  is  not  a  bar  to  the  other.^ 

§  1018.    Who    may  Sue  — And  for  Whose  Benefit.— 

Lord  Campbell's  act  gives  the  action  to  the  executor  or 
administrator  of  the  person  killed,  and  so  do  the  statutes 
of  many  of  the  states.^  Where  the  action  is  given  to  the 
"personal  representatives,"  this  means  the  executor  or 
administrator,  and  not  the  next  of  kin.''    When  the  statute 

'  Steamboat  Co.  v.  Chase,  IG  Wall. 
522;  The  City  of  Brussels,  C  Ben.  370. 

■^  McDonald  v.  Mallory,  77  N.  Y. 
546;  33  Am.  Rep.  C64.  Contra,  Arm- 
Btrong  r.  Buadle,  5  Saw.  484. 

»  Mann  v.  R.  R.  Co.,  9  Cush.  108; 
Hollenbiick  v.  R.  R.  Co.,  9  Cush.  478; 
Bancroft  r.  R.  R.  Co.,  11  Allen,  34; 
Kennedy  v.  Standard  Sugar  Refinery, 
125  Mass.  90;  28  Am.  Rep.  214;  Mo- 
ran  V.  HoUiugs,  125  Mass.  93.  And  see 
Hansford  v.  Payne,  11  Bush,  380. 

*  Murphy  v.  R.  R.  Co.,  .SO  Conn. 
184;  21)  Conn.  490;  Nashville  etc.  R. 
R.  Co.  V.  Prince,  2  Heisk.  580;  Brown 
V.  R.  R.  Co.,  22  N.  y.  191;  Whitford 
V.  R.  11.  Co.,  23  N.  Y.  ^i05;  Connors  r. 
K.  R.  Co.,  71  Iowa,  490;  60  Am.  Rep. 
814. 

6  Needham  v.  T..  R.  Co.,  38  Vt.  294. 
Contra,  Hansford  v.  Payne,  11  Bush, 
380;  Connor  r.  Pau'    '2  Bush,  144. 

*  And  an  administrator  may  be  ap- 
pointed to  bring  it  eveu  where  there 


is  no  other  estate:  Hartford  R.  R.Co.  v. 
Andrews,  36  Conn.  213.  Co)ifra,  Perry 
V.  R.  R.  Co.,  29  Kan.  420,  holding 
that  the  statutory  right  of  action 
for  death  by  wrongful  act  is  not 
an  "asset"  of  the  estate  of  the  de- 
ceased. Therefore  if  it  is  essential 
to  the  grant  of  letters  testamentary 
that  the  deceased  should  either  have 
been  a  resident  of  tlio  county,  or 
should  have  had  assets  therein,  the 
grant  of  letters  upon  the  estate  of  a 
non-resident  who  had  no  other  assets 
in  the  county  is  void. 

'  Hagan  v.  Kean,  3  Dill.  124;  Chica- 
gov.  Major,  18  111.  349;  08  Am.  Dec. 
553;  Drewr.  R.  R.  Co.,  5  Chic  L.  N. 
314;  Kramer  I'.  R.  R.  Co.,  25  Cal.  434; 
Whiton  V.  R.  R.  Co.,  21  Wis.  305; 
Boutiller  v.  Milwaukee,  8  Minn.  97; 
Needham  v.  R.  R.  Co.,  38  Vt.  294; 
Indianapolis  etc.  R.  R.  Co.  v.  Stout, 
C3  Ind.  143;  Woodward  v.  R.  R.  Co. 
28  Wis.  400. 


§  1018 


PERSONAL  WRONGS. 


1724 


makes  the  widow  and  next  of  kin  beneficiaries,  the  action 
may  bo  maintained  where  there  is  a  widow  and  no  kindred, 
or  whore  there  is  next  of  kin  and  no  widow/  It  has  been 
held  that  it  is  not  material  how  remote  the  relationship 
may  be,  if  the  person  claiming  is  dependent  upon  the  de- 
ceased for  support.^  Where  the  statute  provides  that  the 
recovery  shall  be  for  the  exclusive  benefit  of  the  "next 
of  kin,"  it  is  sufficient  to  maintain  the  action  if  there  be 
either  a  widow  or  next  of  kin  surviving,  but  there  must 
be  at  least  one  surviving  relative  of  the  class  named  in 
the  statute.^  An  illegitimate  child  is  not  a  **  cliild,"  ■*  but 
it  is  next  of  kin  to  its  mother.^  A  statute  limiting  the 
right  of  action  to  the  widow,  and  if  no  widow  then  to 
the  child  or  children,  for  the  homicide  of  the  husband 
or  parent,  gives  no  right  of  action  to  a  husband  for  the 
death  of  his  wife.^  A  child  en  ventre  sa  mere  is  entitled  to 
damages  for  the  death  of  its  father/ 

"Where  it  is  provided  that  "  a  widow,  and  if  no  widow  a 
child  or  children,  may  recover  for  the  homicide  of  the 
husband  or  parent,"  if  the  widow  sues  and  marries  pend- 
ing the  suit,  she  may  proceed  to  judgment  notwith- 
standing the  marriage/  If  she  dies  pending  the  suit,  the 
action  and  the  right  of  action  survive  to  the  children, 
whose  damages  will  be  measured  by  the  injury  to  them- 
selves."    Where  the  widow  brings  suit  and  carries  it  to 


'  OUHickl  V.  R.  R.  Co.,  14  N.  Y. 
310;  ll;lt,'^c^ty^•.  R.  R.  Co.,  31  N.  J.  L. 
3-1'J;  Johijslon  r.  R.  R.'Co.,  7  Ohio  St. 
3i5(j;  70  Am.  Dec.  75;  Kansas  etc.  R. 
R.  Co.  r.  iMillur,  2  Col.  442. 

'■^  Chicago  cLc.  R.  R.  Co.  v.  Shannon, 
43Iil.  338;  QuiiicyCoal  Co.  v.  HooJ, 
77  111.  08;  Keuiper  v.  Harris,  25  Ohio 
St.  r)!0. 

^  .Sall'ord  r.  Drew.  3  Duer,  627;  Lu- 
cas v.  R.  R.  Co.,  21  IWb.  245;  Green 
V.  R.  R.  Co.,  10  How.  Pr.  203;  31 
Barl).  20>);  Baltimore  etc.  R.  R.  Co.  v. 
Gcttlo,  3  W.  Va.  370;  Chicago  v.  Ma- 
jor, ISlll.  ;M0;  OS  Am.  Dec.  553;  Mc- 
Malion  r.  l^icw  York,  33  N.  Y.  042; 
Haggerty  v.   E.   R.   Co.,  31   N.  J.  L. 


349;  Oldfield  v.  R.  R.  Co.,  14  N.  Y. 
310. 

*  Dickinson  v.  R.  R.  Co.,  2  Hurl.  & 
C.  735;  Blake  v.  R.  R.  Co.,  10  Eng. 
L.  &  Eq.  443;  Harkins  v.  R.  R.  Co.,  15 
Thila.  280. 

'•>  Muhl's  Adm'r  v.  R.  R.  Co.,  10 Ohio 
St.  272. 

«  Georgia  R.  R.  Co.  v.  Wynu,  42  Ga. 
331. 

"  The  George  and  Richard,  L.  R.  3 
Am.  &  Eccl.  400. 

»  Ga.  etc.  R.  R.  C.  v.  Garr,  57  Ga. 
277;  24  Am.  Rep.  492. 

»  David  V.  R.  R.  Co.,  41  Ga.  223; 
Macon  R.  R.  Co.  r.  Johnson,  38  Ga, 
409;  Taylor  v.  R.  R.  Co.,  45  Cal.  323, 


1725 


TORTS   IN   GENERAL. 


1018 


^'itli- 
),  the 
dren, 
hem- 
it  to 

N.  Y. 

Hurl.  & 

10  Eng. 

Co.,  15 

10  Ohio 

,  42  Ga. 

L.  II.  3 


57   tra. 


ki.  223; 

:?8  (la, 

:al.  323. 


judgment  in  her  own  name,  the  damages  which  can  he 
considered  are  only  her  own  damages,  and  not  those  suf- 
fered by  the  children  also/  A  wife  is  not  prevented  from 
maintaining  an  action  for  the  negligent  killing  of  her 
husband  by  the  fact  that  she  had  been  living  in  separa- 
tion from  him.'^  In  some  states,  the  father,  or  if  he  is  dead 
the  mother,  may  bring  suit,  if  the  person  killed  Avas  a 
minor  child.^  Husband  and  wife  are  not  next  of  kin  to 
each  other.^  In  Pennsylvania,  the  action  does  not  lie  in 
favor  of  the  parents  where  a  son  leaves  a  widow.''  In 
Texas,  the  action  lies  though  the  plaintiff's  son  was  of 
age."  A  statute  giving  a  right  of  action  to  children  will 
not  extend  to  grandchildren.^  Where  a  widow  or  child 
"  may  recover  for  the  homicide  of  the  husband  or  joarent," 
minor  children  may  recover  for  the  homicide  of  the 
mother.^  Where  "a  widow,  or  if  no  widow  a  child  or 
children,  may  recover  for  the  homicide  of  the  husband  or 
parent,"  the  adult  child  of  one  who  left  no  widow  can- 
not recover.^  Where  a  woman  four  or  five  months  preg- 
nant fell  on  a  defective  highway,  and  was  delivered  of  the 
child,  which  survived  but  a  few  minutes,  the  child  was 
not  a  "  person"  within  the  statute  giving  a  cause  of  ac- 


^  Macon  R.  R.  Co.  v.  Johnson,  38 
Ga.  409. 

-  Dallas  etc.  R.  R.  Co.  v.  Spicker, 
61  Tex.  427;  48  Am.  Rep.  297. 

^  Sec  Ala.  Code,  sec.  2809  (1S7G); 
Frank  v.  R.  R.  Co.,  20  La.  Ann.  25; 
Walters  V.  R.  R.  Co.,  30  Iowa,  458; 
Muldowneyr.  R.  R.  Co..  3t5Towa,  402; 
Oldtiekl  V.  R.  R.  Co.,  3  E.  1).  Smith, 
103;  14  N.  Y.  310;  Chicago  v. 
Major,  18  111.  349;  68  Am.  Dec.  rj".3; 
Quin  V.  Moore,  15  N.  Y.  432;  Mc- 
Mahon  v.  New  York,  33  N.  Y.  642; 
Ihl  V.  R.  R.  Co.,  47  N.  Y.  317;  7  Am. 
Rep.  450;  Louisville  etc.  R.  R.  Co. 
V.  Connor,  9  Heisk.  19. 

*  To\ynscna  v.  Radcliffc,  44  111.  440; 
Administratrix  of  Dunheno  v.  Ohio 
Life  Ins.  Co.,  1  Disn.  257;  Lucas  ?'. 
R.  R.  Co.,  21  Barb.  245;  Green  r.  R. 
R.  Co.,  32  Barb.  25;  Dickens  v.  R.  R. 
Co.,  23  N.  Y.  158;  Worley  v.   R.  R. 


Co.,  1  Handy,  481;  Drake  r.  Cilmore, 
52  N.  Y.  389.  See  Steele  v.  Kurtz,  28 
Ohio  St.  191.  Wliero  the  action  is 
given  for  the  bencllt  of  tlie  M-idow  and 
next  of  kin,  if  the  action  is  brought 
for  the  killing  of  the  wife,  the  hus- 
band is  entitled  as  next  kin  to 
such  share  as  lie  would  take  in  her 
estate  under  tlie  statute  of  distribu- 
tions; the  words  "next  of  kin  "  bung 
used  in  the  statute  in  this  peculiar 
sense 

=  Lehigh  Iron  Co.  v.  Ruff,  100  Pa. 
St.  95. 

•"•  Houston  etc.  R.  R.  Co.  /•.  Cowser, 
57  Tex.  293. 

'  McCutcheon  v.  Receivers,  3  Cent. 
L.  J.  635. 

*  Atlanta  etc.  R.  R.  Co.  v.  Venable, 
65  Ga.  55. 

9  Mottr.  R.  R.  Co.,  70  Ga.  680;  48 
Am.  Rep.  595. 


§  1019 


PERSONAL   ^V^lONGS. 


1726 


tioii  for  negligent  death  to  the  administrator.*  Where 
the  husband  and  \nfG  and  children  all  perished  in  the 
same  disaster,  no  right  of  action  survived,  though  the 
wife  might  slightly  have  outlived  her  husband."  The 
money  recovered  by  the  personal  representative  in  such 
actions  is  not  for  the  benefit  of  the  estate,  and  the  credi- 
tors, therefore,  have  no  claim  on  it.  The  recovery  consti- 
tutes a  si>ecial  fund  for  the  beneficiaries  under  the  statute.^ 

§  1019.     Wrongful  Act,  Neglect,  or  Default.  —  These 
words  in  the  statutes  cover  negligence,  and  hence  it  is 
no  defense  that  the  death  was  unintentionally  caused.'*    A 
gas  company  which  orders  its  servant  into  a  room  from 
which  the  gas  cannot  escape,  so  that  he  suffocates,  is 
liable  to  his  personal  representatives;^    but  under  a  stat- 
ute giving  a  right  of  action  where  death  ensues  from  an 
"injury  inflicted  by  the  wrongful  act  of  another,"  such 
action  cannot  be  maintained  against  one  charged  only 
with  passive  neglect  or  a  mere  omission  of  duty.'"'     The 
Kentucky  statute  allows  in  the  case  of  a  killing  by  "  will- 
ful neglect "  the  giving  of  punitive  damages.^     "  Willful 
neglect "  in  this  statute  means  "  such  conduct  as  evidences 
reckless  indifference  to  the  safety  of  the  public,  or  an  in- 
tentional failure  to  perform  a  plain  and  manifest  duty  in 
the  performance  of  which  the  public  has  an  interest."  ^ 
It  is  said  that  "willful  neglect  and  wanton   neglect  are 
nearly  synonymous,  each  implying  either  actual  malice 
or  anti-social  recklessness";"  but  "gross  negligence  "  is 


*  Dietrich  v.  Northampton,  138 
Mass.  14;  52  Am.  Rep,  242. 

■^  Gibbd  r.  Hannibal,  82  Mo.  143. 

8  Whitforil  i'.  II.  R.  Co.,  23  N.  Y. 
465;  Hagfjerty  v.  R.  R.  Co.,  31  N.  J. 
L.  349;  Chicago  r.  Major,  18  111.  349; 
68  Am.  Dee.  553;  Waldo  v.  Goodsell, 

33  Conn.  432;   Lyon  v.  R.  R.  Co.,  7 
Ohio  8t.  3;{ti;   Andrews  v.  R.  R.  Co., 

34  Conn.  57;  South  etc.  R.  R.  Co,  v. 
Sullivan,  59  Ala.  272. 

*  Baker  v.  Bailey,  16  Barb.  54; 
Gina  v.  R.  R.  Co.,  8  Huo,  494. 


^  Citizens'  Gas  Light  etc.  Co.  v. 
O'Brien,  118111.  174. 

«  Bradbury  v.  Furlong,  13  R.  I.  15; 
43  Am.  Rep.  1. 

'  2  Ky.  Rev.  Stats.,  510,  sec.  3. 

8  Jacob's  Adm'r  v.  R.  R.  Co.,  10 
Bush,  263;  Lexington  v.  Lewis's 
Adm'x,  10  Bush,  677. 

"  Board  of  Internal  Improvements 
V.  Scearce,  2  Duvall,  570;  Lexing- 
ton V.  Lewis's  Adm'x,  10  Bush,  677. 
Mere  negligence  of  a  railroad  em- 
ployee causing  a  death  is  uot  a^will< 


8  Ev; 

MVee 

BRea. 

655;  8ei 

Connor  i 

bin  V. 

Spiva  V. 


1727 


TORTS   IN   GENERAL. 


§1020 


not  synonymous  with  "  willful  neglect."  *  An  intentional 
killing  is  not  within  the  statute.^  "Wrongful  act  or  omis- 
sion "  in  a  statute  is  synonymous  with  negligent  act  or 
omission;^  but  these  words  do  not  cover  the  death  of  one 
who  died  immediately  after  drinking  liquor  sold  him  by 
one  knowing  his  intemperate  habits.^  Where  the  killing 
was  intentional,  there  can  be  no  recovery  if  it  was  justifi- 
able.'^  But  no  presumption  of  wrong  or  malice  arises 
from  the  mere  act  of  killing,  as  in  criminal  prosccu- 
tions.'^  In  Georgia  it  is  held  that  if,  in  resisting  a  bat- 
tery, the  assailant  be  willfully  slain,  his  widow  may 
recover  damages,  unless  the  homicide  be  justifiable.  If 
it  amounts  either  to  murder  or  voluntary  manslaughter, 
it  is  a  cause  of  action.  The  aggressive  conduct  of  the  de- 
ceased, and  his  unlawful  violence,  will  go  in  mitigation 
Oi  damages/ 

§  1020.  Right  not  Enlarged  by  Statute  —  No  Action 
if  Deceased  could  not  have  Sued.  —  The  statutes  give 
an  action  only  when  the  deceased  himself,  if  the  injury 
had  not  resulted  in  his  death,  might  have  maintained  one. 
In  other  words,  it  continues,  for  the  benefit  of  the  wife, 
husband,  etc.,  a  right  of  action  which,  at  the  common  law, 
would  have  terminated  at  the  death,  and  only  enlarges  its 
scope  to  embrace  the  injury  resulting  from  the  death.* 


ful  act  or  omission  ":  Houston  etc. 
R.  R.  Co.  V.  Baker,  57  Tex.  419. 

»  Hansford  v.  Payne,  1 1  Bush,  380. 

2  Spring  ?'.  (tlenn,  12  Busli,  172. 

'  Jefferson  etc.  R.  R.  Co.  v.  Riley, 
39  Ind.  51}S. 

*  King  V.  Henkie,  80  Ala.  505;  GO 
Am.  Rop.  119;  but  see,  contra,  McCiic 
V.  Klein,  60  Tex.  1G8;'  48  Am.  Rep.  200. 

*  As  to  what  is  justification,  see 
Chapter  LI.,  Assault. 

6  Evans  v.  Newland,  34  Ind.  112. 

^  Wcckes  V.  Cottingiiam,  58  Ga.  559. 

8  Read  V.  R.  R.  Co.  L.  R.  3  Q.  B. 
55ij;  Senior?'.  Ward,  1  El.  &  E.  385; 
Connor  v.  Paul,  12  Bush,  144;  McCub- 
bin  V.  Hastings.  27  La.  Ann.  713; 
Spiva  V.  Coal  Co.,  88  Mo.  68;  Holtou 


V.  Daly,  100  111.  131.  But  the  admin- 
istrator of  a  deceased  wife  may  sue, 
though  if  she  had  lived  slic  could  not 
have  sued  without  joining  lier  hus- 
band: Green  v.  R.  R.  Co.,  31  Barb. 
260.  The  administrator  can  bring  an 
action  for  tlie  injury  under  the  same 
restrictions  and  on  the  same  grounds 
that  the  party  injured,  if  death  had 
not  ensued,  might  have  done:  Meara'a 
Adm'r  V.  Holljrook,  20  O!iio  St.  137; 
5  Am.  Rep.  633.  But  if  the  party  in- 
jured, having  a  right  of  action,  brings 
suit  upon  it.  and  dic.i  pending  the 
suit,  as  the  suit  thereby  abates,  it  is  no 
impediment  to  a  suit  by  the  admin- 
istrator: Indianapolis  etc.  R.  R.  Co, 
V.  Stout,  53  lad.  143. 


§1020 


PERSONAL  WnONGS. 


1728 


Therefore,  though  a  right  to  recover  bo  given  to  a  widow 
or  children  for  the  homicide  of  the  husband  or  parent,  iu 
broad  terms  and  without  qualification,  yet  this  docs  not 
cover  every  case  of  homicide.  Cases  of  self-defense,  of 
inevitable  accident,  of  execution  by  command  of  Llio  law, 
etc.,  must,  from  the  nature  of  things,  be  excepted.'  So 
damages  cannot  be  recovered  where  the  deceased  was  guilty 
of  contributory  negligence;''  or  where  the  death  was 
caused  by  tbo  neglect  of  a  fellow-servant  in  the  common 
employment  of  tho  defendant;  ^  or  where  the  death  was 


1  Western  etc.  R.  R.  Co.  v.  Strong,  52 
Ga.  4G1 .  But  the  doctrine  that  lie  who 
fcuks  nad  originatea  an  affray  resulting 
in  liomiciilc  cannot  avail  himself  of  the 
plcv  ''"defense  is  not  applicable 

;  1  ,'■'  for  damages  brought  by 

ar  ive  of  the  deceased:  Bese- 

neekor  v.  .>alo,  8  Mo.  App.  211. 

« Hill  r.  R.  R.  Co.,  i)  Heisk.  823; 
Tlio;  ;ood v.  Bi  >a n ,  8 Com. B.  1 1 5 ; Sims 
V.  I!    a.  .        28  33;  Sears  v.  R.  R. 

Co.,  53 Ga.  (330;  Old'IcId  •.  R.  R.  Co., 
3  E.  D.  Smith,  103;  .Sheridan  v.  R. 
R.  Co.,  SON.  Y.  39;  93  Am.  Dec.  400; 


Spriiigett   V.  Ball,  4  Fost.  &  F.  47; 
Biincroft  v.  R.  R.  Co.,  97  Mass.  275; 
State  V.    R.    R.  Co.,  24  Md.  84,    108; 
87    Am.    Dec.    GOO;    Baltimore    etc. 
R.    R.    Co.  V.    Miller,    29    Md.  252; 
Baltimore   etc.    R.    R.  Co.  v.  Smith, 
29    Md.    4G0;  Baltimore  etc.    R.    R. 
Co.  ?'.    Fryer,    30  Md.   47;    Northern 
etc,  R.   R.    Co.  V.  Geis,  31  Md.    357; 
Baltimore  etc.  R.  R.  Co.  v.  Trainor, 
33  Md.  542;   Cumberland  etc.  R.  R. 
Co.  ('.  Fazenbaker,  37  Md.  156;  Leh- 
man    ?•.     Brooklyn,    29     Barb.    234; 
MitchoU  V.    R.  R.  Co.,  2   Hun,  5.35; 
Pennsylvania  R.  R.  Co.  v.  Zcbe,  33  Pa. 
St.  318:  Lofton  v.  Vogles,  17  lad.  105; 
Evausville  etc.  R.    R.  Co.  v.  Lowder- 
milk,  15Iiid.  120;  Bronk  v.  R.  R.  Co., 
6    Daly,  454;   Massoth    v.    Delaware 
etc.    Canal   Co.,    6    Hun,    314;   Wil- 
letts  ?'.  R.  R.  Co.,  14  Barb.  585;  But- 
ton r.  R.    R.   Co.,    18   N.    Y.    248; 
Knight  r.  R.  R.  Co.,  23  La.  Ann.  402: 
Maher    r.    R.    R.    Co.,    64  Mo.   207; 
Karlo    V.  R.    R.    Co.,    55    Mo.    470; 
Tucker  r.  Chaplin,  2    Car.  &  K.    730; 
Louisville  etc.  R.  R.  Co.  r.  Burke,  6 
Cold.  45;  Higgins  v.  R.  R.  Co.,  3G  Mo. 


418;  Harnn  v.  R.  R.  Co.,  04  Mo. 
480;  65  Mo.  22;  Curran  ?".  Warren 
Chemical  etc.  Co.,  30  N.  Y.  153;  Wilda 
V.  R.  R.  Co.,  24  N.  Y.  430;  Wither- 
ley  i\  Regent's  Canal  Co.,  12  Com. 
B.,  N.  S.,  2;  Gay  v.  Winter,  34  Cal. 
153;  Rowland  r.  Cannon,  35  Ga.  105; 
Indianapolis  etc.  R.  R.  Co.  ?-.  Stout, 
53  Ind.  143;  Tclfcr  v.  R.  R.  Co., 
30  N.  J.  L.  188;  Panlmicr  v.  R, 
R.  Co.,  3i  N.  J.  L.  151;  Buaucoup 
Coal  Co.  V.  Cooper,  12  111.  App.  373; 
Moody r.  Peleterson,  11  111.  App.  ISO; 
Berry  v.  R.  R.  Co.,  72  Ga.  1.37. 
But  the  action  is  not  barred  be- 
cause the  injured  person  did  not  adopt 
the  best  remedies  or  follow  implicitly 
tho  directions  of  hia physician:  Texas 
etc.  R.  K.  Co.  V.  Orr,40  Ark.  182. 

»  Senior  v.  Ward,  28  L.  J.  Q.  B.  1,30; 
7  Week.  Rep.  261;  5Jur.,  N.  S.,  172; 

I  El.  &  E.  385;  Wigmoro  v.  Jay,  19 
L.  J.  Ex.  300;  5  Ex.  3.54;  Toledo  etc. 
R.  R.  Co.  V.  Conroy,  OS  111.  500; 
McMillans.  R.  R.  (.'o.,  20  Barb.  449; 
Slattery's  Adm'r  v.  R.  U.  Co.,  23 
Ind.  81;  Ilubgh  v.  R.  R.  Co.,  6 
La.  Ann.  495;  54  Am.  Dec.  505;  Madi- 
son etc.  R.  R.  Co.  V.  Bacon,  00  Ind. 
205;Dynen  v.  Leach,  26  L.  J.  Ex.  221; 
Louisville  etc.  R.  R.  Co.  v.  Collins, 
2Duvall,  114;  Jcffcrsonville  etc.  R. 
R.  Co.  V.  Hendricks,  26  Ind.  228;  41 
Ind.  48;  Higgins  v.  R.  R.  Co.,  36 
Mo.  418;  Packet  Co.  v.  McCue,17  Wall. 
508;  Kan.'as  etc.  R.  R.  Co.  v.  Salmon, 

II  Kan.  ^3;  Hutchinson  v.  R.  R.  Co., 
6  Eng.  Rail.  Cas.  580;  Elliott  v.  R.  R. 
Co.,  67  Mo.  272;  Smith  v.  Steele, 
44  L.  J.  Q.  B.  60;  L.  R.  10  Q.  B. 
125;  Swainsoni).  R.  R.  Co.,  20  Week. 
Bep.  413;  Caaaou  v,  Rowland,  34  Ga. 


17S 

not 
wh( 
whe 
and 


reco 
feeli] 
fort  ( 
loss  1 
by  a 
Pollo( 

422;  Ch 
45  HI.  I 
etc.    R. 
Ohio  etc 
74  Am.  I 
68  Ga.  8 
was  held 
"whencA 
tlie  acti( 
relatives, 
servant  c 
genco  of 
K.   R.   C 
Schultz  v. 
nor  I'.  R. 
Pliiioz).  R 
,  '  ^Vagnc 
Sherman  « 
^lo;Ginnci 
^'.  Y.  590 
*^e.  277;  \ 
2-7;  Balti 
33  Md.  541 
son  came 
f^'lled   A. 
that  she   c 
cido  not  bei 
mate  resuj 
Ccnly,  H  I 
"  Martin^ 
^  Read  V. 
555. 

,     *FraukIii: 

211;   Blake 

Penasylvaui 

Adm'r,  231 

K  R.  Co.  V. 

I  Am.  Dec.  .32: 

!••  Zobe,  33  P 

if-  R.  Co.  r.  ^ 

[North   Ponas 

10 


1729 


TORTS   IN   GENERAL. 


§  1021 


not  tliG  natural  and  proximate  result  of  the  injury;*  or 
where  the  deceased  was  engaged  in  an  illegal  service ; "  or 
where  the  party  injured  had  compromised  for  the  injury 
and  accepted  satisfaction  previous  to  the  deatli;^ 

§  1021.  Damages  —  Measure  of.  —  The  ground  of 
recovery  must  be  something  besides  an  injury  to  the 
feelings  and  affections,  or  a  loss  of  the  pleasure  and  com- 
fort of  the  society  of  the  person  killed;  there  must  be  a 
loss  to  the  claimant  that  is  capable  of  being  measured 
by  a  pecuniary  standard.  "  These  damages,"  as  said  by 
Pollock,  C.  B.,  "  are  not  to  be  given  as  a  solathim.'^^     For 


422;  Chicago  etc.  R.  R.  Co.  v.  .Swctt, 
45  111.  197;  92  Am.  Dec.  200;  Tokdo 
etc.  R.  R.  Co.  V.  Moore,  77  HI.  217; 
Ohio  etc.  R.  R.  v.  Tindall,  13  Inil.  31)0; 
74  Am.  Dec.  2r>9 ;  McDonald  v.  M  f  g.  Co. , 
08  Ga.  839;C7(ua.  701.  In  Missouri,  it 
was  liekl  that  a  statute  providing  that 

"whenever  any  person  shall  die 

the  action  shall  lie  by  his  surviving 
relatives,"  docs  not  alter  the  rule  that  a 
servant  cannot  recover  for  the  negli- 
gence of  a  fellow-servant:  Proctor  v. 
R.  R.  Co.,  Gi  Mo.  112;  overruling 
Schultzr.  R.  R.  Co.,  3G  Mo.  13;  Con- 
nor V.  R.  R.  Co.,  59  Mo.  285;  but  sue 
Piiilov.  R.  R.  Co.,  33  Iowa,  47. 

*  Wagner  v.  Woolsey,  1  llcisk.  235; 
Sherman  v.  West.  Stage  Co.,  24  Iowa, 
Gl5;Ginna  v.  R.  R.  Co.,  8  Hun,  494;  07 
N.  Y.  59(5;  Nickerson  V.  Harriman,  38 
Mc.  277;  McLean  u.  Burbank,  11  Minn. 
277;  Baltimore  etc.  R.  R.  v.  Trainor 
3:?  Md.  542.  A  and  B  fought,  and  B's 
son  came  to  his  father's  rescue  and 
fvilled  A.  As  wife  sued  B.  Ilrl'l, 
that  she  could  not  recover,  the  homi- 
cide not  being  the  natural  and  proxi- 
mate result  of  B's  wrong:  Wliite  v. 
Conly,  14  Lea,  51;   52  Am.  Rep.  1.54. 

'^  Martin  v.   Wallace,    40    Ga.   52. 
3  Read  v.  R.  R.  Co.,   L.    R.  3  Q.  B. 
555 

*  Franklin  v.  R.  R.  Co  ,  3  Hurl.  &  N. 
211;  Blake  v.  R.  R.  Co.,  18  Q.B.  93; 
Pennsylvania  R.  R.  Co.  v.  McCloskey's 
Adm'r,  23  Pa.  St.  52G;  Pennsylvania 
R.  R.  Co.  V.  Ogier,  35  Pa.  St.  GO;  78 

I  Am.  Dec.  .322;  Pennsylvania  R.  R.  Co. 
r.  Zebe,  33  Pa.  St.  318;  Pennsylvania 
K.  R.  Co.  r.  Vandever,  3G  Pa.  St.  298; 

jKorth  Pennsylvania  R.    R.    Co.    v. 

109 


Robinson,  44  Pa.  St.  175;  Catawis?a 
R.  R.  Co.  V.  Ann-itroiig,  52  Pa. 
St.  282;  Pennsylvauiiia  R.  R.  Co.  v. 
Butler,  57  Pa.  St.  3;'.5;  Pennsylva- 
nia R.  R.  Co,  r.  (roodman,  02  Pa. 
St.  329;  Huntinu'don  etc.  R.  R. 
Co.  V.  Decker,  84  Pa.  St.  419;  South- 
western R.  R.  Co.  r  Paulk,  24  Ga. 
350;  Kansas  etc.  li.  K.  Co.  v.  Miller,  2 
Col.  442;  Brady  v.  Chicago,  4  Biss.  448; 
Barley  v.  R.  R.  Co.  4  T^iss.  430;  Leh- 
man V.  Brooklyn,  20  Barb.  234;  Green 
r.  R,  R.  Co.,  32  B;;rb.  25;  Kesler  r. 
Smith,  GGN.C.  154;  C.)lliei>.r.  Arring- 
ton,  Phill.  (N.  C.)  ;!r)0;  Tclfer  r.  11.  R. 
C'o.,  30  N.  J.  L.  18S;  Foppraur  c.  Baker, 
3  Mo.  App.  559;  Chiiago  r.  !Maj(U',  IS 
111.  349;  08  Am.  Doc.  5,-):5;  Chicago  etc. 
R.  R.  Co.  V.  Morris,  20  III.  400;  Chi- 
cago etc.  R.  R.  Co.  r.  Sliaiinon,  43  III. 
338;  Chicago  etc.  R.  K.  Co.  r.  Swett, 
45  III.  197;  92  Am.  Dec.  200;  Conaut 
V.  Griffin,  48  111.  410;  Illinois  etc.  R. 
R.  Co.  V.  Weldon,  52  III.  290;  Illinois 
etc.  R.  R.  Co.  V.  Baches,  55  111.  379; 
Chicago  r.  Scholtcn,  75  III.  408;  Chi- 
cago r.  Harwood,  80  111.  88;  Paulmior 
V.  R.  R.  Co.,  34  N.  J.  L.  151;  Donald- 
son V.  R.  R.  Co.,  IS  Iowa,  280;  87  Am. 
Dee.  391;  Nashville  etc.  R.  R.  Co.  r. 
Stevens,  9  Heisk.  12;  Covington  Street 
R.  R.  Co.  V.  Packer,  9  Bush,  455;  15 
Am.  Rep.  725;  Ohio  etc.  R.  R.  Co.  r. 
Tindall,  13Ind.  300;  74  Am.  Deo.  2o9; 
Long  V.  Morrison,  14  lad.  595;  77  Am. 
Dec.  72;  March  c.  Walker,  48  Texas, 
372;  Kansas  etc.  R.  R.  Co.  v.  Cutter, 
19  Kan.  83;  Holmes  v.  R.  R.  Co.,  G 
Saw.  202;  Lawson  r.  R.  R.  Co.,  G4 
Wis.  447;  54  Am.  Rep.  G34;  Aurv.  R. 
R.  Co.,  29  Fed.  Rep.  72. 


1021 


PERSONAL   ■S\T.ONGS. 


1730 


distress  of  mind  damage  cannot  bo  recovcrod,  nor  are 
the  "opportunities  of  acquiring  wcaltli  or  fortune  by 
■change  of  circumstances  in  life"  to  be  considered.'  In  the 
case  of  ii  lireman  killed  l)y  the  exi)losion  of  a  boiler,  an 
instruction  that  Ihe  jury  might  "consider  the  shock  to 
the  feelings  of  the  wife"  is  erroneous."  An  injury  received 
by  a  next  of  kin  by  the  dissolution  of  a  partnership  rela- 
tion between  himself  and  the  deceased  cannot  lie  I'ccov- 
cred  fur.''  The  jiain  and  suffering  by  the  deceased  are  not 
elements  of  damage  to  be  recovcrod  by  survivors.'  Gen- 
erally, there  must  be  some  evidence  of  ])ocuniary  loss  on 
the  jvirt  of  the  beneficiary."'  \n  some  relations  it  is  pre- 
sumed. Thus  jiecuniary  damage  will  ho  i)resumed  in  the 
case  of  an  action  for  the  benelit  of  a  widow  anil  children." 
Also  in  the  case  of  a  suit  for  the  death  of  a  child,  for  the 
benefit  of  ])arents.''  The  facts  that  the  children  of  one 
killed  by  negligence  are  of  full  ago  and  not  living  with 
their  parent,  and  are  supporting  themselves,  do  not  alone 
show  tkat  they  have  sustained  no  pecuniary  damage  from 
the  parent's  death.^  The  damages  recoverable  by  the  ad- 
ministrator are  not  necessarily  nominal.'"*  In  an  action  by 
u  widow  and  children,  the  plaintilfs  have  an  interest  in 
the  deceased's  life  to  the  extent  of  their  support,  at  least, 
although  he  was  largely  indebted  at  the  time  of  his  death.'" 
It  is  not  necessary  that  the  beneficiary  should  have  a 
legal  claim  on  the  deceased.^'     So  the  jury  may  consider 

1  Mansfield  Coal  and  Coke  Co.  ?'.  Mc-  "  Chicago  ?\  iSclioltcii,    75    111.  4G8; 

Encry,  !»l  I'a.  St.  IS.i;  3lJ  Am.  Kep.G(J-_'.  Condon  v.  R.  R.  Co.,  IG  I.  C.  L.  R. 

-  Nashville  etc.  R.  R.  Co.  v.  Stevens,  4J.'3;  Roliel  r.  R.  R.  Co.,  35  Minn.  84. 

9  HcisJc.  l'_>.  ''Lockwood  v.  R.  R.  Co.,  <)S  N.  Y. 

^  Deinarc^it  r.  Little,  42  N.  J.  L.  28.  523. 

1  Baiion  ?•.  R.  R.  Co.,  1  Biss.  412;  '•>  Corliss  v.  R.  R.  Co.,  03  N.  H.  404. 
Long  v.  Morrison.  14  Ind.  595;  77  Am.  '"  Pennsylvania  R.  R.  Co.  v.  Hen- 
Dee.  72;  lloltou  V.  Daly,  lOG  111.  131.  derson,  ol'Pa.  St.  315. 

•'  Cliicago   etc.  R.  R.  Co.  v.  Morri.s,  "  Keller  r.  R.  R.  Co.,  17  How.  Pr. 

2G  111.  400;  111.  etc.  R.  R.  Co.  v.  Wcl-  102;  Paulmier  v.  R.  R.  Co.,  34  N.  .1. 

don,  52  111.  290.  L.    151;    Pennsylvania    R.    R.   Co.  r. 

"  Adni'x  of   Dunhene   v.  Ohio  Life  Keller,  G7  Pa.   .St.  300;  Oldtield  v.  R. 

etc.  Co.,  1  Disn.  257;   Stoher  v.  R.  R.  R.  Co.,  14  N.  Y.  310;  Melntyre  r.  R. 

Co.,  91  Mo.  509;    Atchison  etc.  R.  R.  R.  Co.,  37  N.  Y.  287;  (Wotenkemper 

Co.  V.  Weber,  33  Kau.  543j  52  Am,  r.    Harris,  25  Ohio  St.  510;  R.  R.  Co. 

Rep.  543.  V.  Barron,  5  Wall.  90. 


th( 


TJi 


mo 

Thi 

fort 

«ion 

of  a 

an  i] 

So  t 

care, 

ered 

cons] 

mora 

the  cj 

the  in 

damai 
port  i\ 
tions  c 
life,  ];r 
thus  st 
probab 
businof 
and  will 
'Ji'cn,  t^ 
labor,  t„ 
'^ome  oti 
•"^fi'uctiol 
"•hicli  t( 
liavo  gi\| 

•i-ii. 

Be.st  &  8.  ;{| 
'•Vd.   Roj, 

■*  A  tell  ISO 
heo.soa  r.  AM 

''^^■-  I^-  R.  ^, 
Am.  Deo,  2J 


30 


1731 


TORTS    IN   GENEllAL. 


1021 


arc 

by 

llie 
an 
c  to 
ivcd 
rola- 

'COV- 

3  not 

Gen- 
Sri  on 

6  prc- 

in  tlio 

drcn/' 

or  the 

of  one 

r  with 

t  alone 

re  from 

the  ad- 
tion  by 
rest  in 
vt  Icai-t, 
dcath/'^ 
have  a 
onsidcr 

III.  40«-. 
('.  L.  R. 

Mian.  St. 
OS  N.  Y. 

Ik.  H.  404. 
|o.  V.  Hen- 

ITow.  Tr. 

11.  Co.  V'. 

luii-'iti  r.  r^- 

lutyvo  '■•  1'^' 
R.  11.  f  0. 


the  loss  sustained  by  deprivation  "  of  his  wife's  fiociofy."* 
Tlie  damages  arc  not  confined  to  an  immediate  los-<  of 
money  to  those  ibf  whoso  ))enerit  the  action  is  broucrht. 
Thus  the  loss  of  the  benefit  of  an  education,  and  the  com- 
forts and  conveniences  of  life,  depending  upon  the  pfjsses- 
sion  of  pecuniary  means  to  ol.>tain  tliem,  through  the  death 
of  a  relative  whose  <lu<y  or  hal)it  it  Avas  to  supply  them,  is 
an  injury  in  respect  to  which  an  action  may  be  maintained.^ 
So  the  injury  to  a  widow  in  the  loss  of  her  husl)and'3 
care,  protection,  support,  and  assistance  rnaj'  bo  consid- 
ered in  estimating  damages.''  i-^o  the  jury  maj^  take  into 
consideration  the  nurture,  instruction,,  and  physical, 
moral,  and  intellectual  training  which  the  mother  gives  to 
the  children."*  In  Georgia,  when  tlie  action  is  brought  in 
the  interest  of  children  for  the  loss  of  their  father,  the 
damages  should  bo  the  present  worth  of  a  reasonable  sup- 
port for  them  during  minority,  according  to  the  cx]iccta- 
tions  of  the  father's  life,  and  in  view  of  his  condition  in 
life,  prospects,  habits,  etc.°  In  Pennsylvania  the  rule  is 
thus  stated:  "The  loss  is  what  the  deceased  would  have 
probably  earned  by  his  intellectual  or  bodily  labor  in  his 
business  or  profession  during  tlie  residue  of  his  lifetime, 
and  which  would  have  gone  for  the  benefit  of  his  chil- 
dren, taking  into  consideration  ability  and  disposition  to 
labor,  and  his  habits  of  living  and  expenditure.""  In 
some  other  states,  the  probable  value  of  the  nurture,  in- 
struction, and  physical,  moral,  and  intellectual  training 
which  tho  parent  for  whose  loss  the  suit  is  brought  might 
have  given  to  the  children,  are  considered  proper  elements 

1  Crcgin    v.    R.    R.    Co.,    19   Hun,  Coimn'r.s  v.  Legg,  93  Iml.  52.3;  47  Am. 

U\.  Koi).  :n). 

-  Pyin  V.  R.  R.  Co. ,  2  Best  &  8.  759;  4  '  TiUoy  r.  R.  H.  Co. ,  29  N.  Y.  252; 

Bust  &  S.  :}9();  Collins  v.  Davidson,  19  Sti  Am.  i)L>c.  297. 

tVa.   Kcp.   8;?;   Howard  Co.  Comui'M  '  David  r.  R.   11.   Co.,  41    <!a.    22.3; 

•-.  Legg,  93  Ind.  523;  47   Am.    Rop.  7  Catawissa  v.  R.  R.  Co.  v.  Armstrong, 

3'JO.  52  Pa.  St.  2S2. 

■^  Atchison    v.   Irvine,    9  Kan.  350;  ^'  I'enn.   R.  R.  Co.  r.  Butler,  57  Pa. 

Beosou  r.  Mining  Co.,  57  Cal.  20;  Ohio  St.    335;    Manslield  Coal  Co.    r.    Me- 

rto.  R.  R.  Co.  Tiudall,  13  Ind.  3l3(3;  74  E  lery,  91  Pa.  St.  185;  3G  Am.  Rep. 

Am.  Dec.  259.    Contra,    Howard  Co,  (i02. 


§  1021 


PERSONAL   WRONOS. 


1732 


1733 


of  damages.*     Nursing,  medical  attendance,  and  funeral 
expensos  are  also  recoverable." 

In  England,  under  the  statute,  no  action  ynW  lie  for  the 
recovery  of  merely  nominal  damages.^  But  in  the  United 
Slates,  where  actual  damages  are  not  proved,  nominal 
damages  are  recoverable.*  But  exemplary  damages  are 
not  recoverable,  unless  the  statute  expressly  or  impliedly 
authorizes  them.'  In  Missouri  they  are  by  implication," 
and  in  some  other  states  they  are  expressly  allowed.' 
The  statutes  of  some  of  the  states  assess  the  damages  in 
such  actions  at  a  fixed  sum,  or  fix  a  maximum  or  mini- 
mum of  recovery.  The  court  has  power  to  set  aside  as 
excessive  a  verdict  rendered  under  the  statute  allowing  a 
right  of  action  and  the  recovery  of  damages  to  the  amount 
of  five  thousand  dollars,  where  death  is  caused  by  negli- 
gence. In  this  class  of  cases,  as  in  others,  damage  must 
be  proved.^  In  the  absence  of  a  statute,  the  amount  of 
the  verdict  rests  largely  in  the  discretion  of  the  jury, 
whose  conclusion  will  not  be  reversed  unless  manifestly 


'  Cooley  on  Torts,  274;  Tllley  v.  Tl. 
R.  Co.,  'J!>  N.  Y.  2o'2;  8(5  Am.  Dec.  '207; 
111.  etc.  R.  K.  Co.  V.  Wcldon,  52  111. 
2i)0;  Castello  r.  Landwohr,  28  Wis. 
5.'^2;  Mclntyro  v.  K.  R.  Co.,  37  N.  Y. 
287. 

-  Penn.  R.  R.  Co.  r.  Bantom,  54  Pa. 
St.  40.");  Clevelaml  etc.  R.  R.  Co.  r. 
Rowan,  (3(5  Pa.  St.  39:^;  Owen  v. 
Brockschmiilt,  54  Mo.  2S5;  Roeder  ;•. 
Oriiisl)y,  22  How.  Pr.  270;  Rains  v.  R. 
R.  Co.,  71  Mo.  ia4;  .3(5  Am.  Rep.  4oi); 
Murphy?'.  R.  R.  Co.,  88  N.  Y.  445. 
Coiitni,  in  England,  Boulter  r.  R.  R. 
Co.,  i;J  Week.  Rep.  289;  Dalton  r.  R. 
R.  Co.,  4C.  B.,  N.  S.,  29G. 

^  Duckworth  i\  Johnson,  4  Hurl.  & 
N.  G53;  Boulter  v.  Webster,  13  Week. 
Rep.  289. 

*  (Juin  V.  Moore,  15  N.  Y.  432; 
Ihl  r.  R.  R.  t'o.,  47  N.  Y.  317; 
7  Ain.  Rep.  450;  Lehman  v.  Brook- 
lyn, 29  Barb.  234;  Chicago  etc. 
R.  R.  Co.  V.  Shannon,  43  111.  338; 
Chicago  etc.  R.  R.  Co.  ?».  Smith,  45 
IlL  197;  92    Am.  Dec.    206;  Chicago 


etc.   R.  R.  Co.   V.    Scholten,   75  111. 
4G8. 

f'Conant  v.  Griffin,  48  111.  410; 
Western  R.  R.  Co.  v.  Paulk,  24  Ga. 
350;  Pennsylvania  R.  R.  Co.  v.  Hen- 
derson, 51  Pa.  St.  315;  Cleveland  etc. 
R.  R.  Co.  r.  Rowan,  0(5  Pa.  St.  393; 
Baltimore  etc.  R.  R.  Co.  v.  Kelly,  24 
Md.  271. 

"  Owen  V.  Brockschmidt,  54  Mo. 
285;  Foppiano  v.  Baker,  3  Mo.  App. 
559. 

'  Bowler  v.  Lane,  3  Met.  (Ky.)  311; 
Covington  Street  R.  R.  Co.  c.  Packer, 
9  Bush,  455;  15  Am.  Rep.  725;  Louis- 
ville etc.  R.  R.  Co.  V.  Case's 
Adm'r,  9  Bush,  728;  Jacobs's 
Adm'r  ?'.  Louisville  etc.  R.  R. 
Co.,  10  Bush,  2C3;  Myers  v.  San 
Francisco,  42  Cal.  215;  Matthews  v. 
Warner,  29  Gratt.  570;  20  Am.  Rep. 
390. 

^  Houghkirk  v,  Delaware  etc.  Canal 
Co.,  92  N.  Y.  219:  44  Am.  Rep. 
370. 


wrong 
earn? 
an  est 
of  kin 

§10 

the  dot 

value  c 

child  a 

cstimat 

less  the 

"lay  rec 

after  tl 

compan 

feelings 

eight  ye 

the  boy 

in  supp( 

tion.^    a 

'  Staal  ?>. 
The  court  o 
tnrb  verdict) 
iive  liundret 
killing  of  a 
good   health 
Walter  ?>. 
Three  thonsj 
of  a  husbauc 
111.  etc.  R,  I 
t-'S7.      Two 
dollars  for  t: 
in  fair  healtl 
per  day,  and 
dependent  on 
r.  Milwaukee 
<j7  Wis.  40. 
where  plainti 
she  being  an 
Cook  p.  R.  R. 
teen  thousand 
a  young  and  r 
Kast  Line  etc 
Tex.  107.  Two 
death  of  a  ma 
(it'ty-live  year 
iiud    seven    c 
Jauesville,  07 


1733 


TORTS   IN   GENERAL. 


§  1022 


facobs's 
H.    R. 

San 
lews  V. 
tn.  Eep. 


wrong.*  The  question,  What  did  tho  deceased  usually 
earn?  is  a  material  and  important  inquiry  in  forming 
an  estimate  of  tho  pecuniary  loss  sustained  by  the  next 
of  kin  by  reason  of  negligence  ^ 

§  1022.  Where  Deceased  a  Minor.  —  In  the  case  of 
the  death  of  a  minor  child,  the  measure  of  damages  is  tho 
value  of  his  services  from  the  time  of  the  injury  until  tho 
child  arrives  of  age,  less  tho  expense  of  maintenance,  etc., 
estimated  in  connection  with  the  expectation  of  life;'  and 
less  the  expense  of  its  support.''  In  some  cases  the  parents 
may  recover  damages  for  pervices  he  would  have  rendered 
after  that  time.°  There  cau  bo  no  recovery  for  loss  of 
companionship  or  association,  or  injury  to  the  parents' 
feelings."  In  an  action  for  the  death  of  a  boy  seven  or 
eight  years  of  age,  if  the  family  was  poor,  the  fact  that 
the  boy  would  probably  early  have  commenced  to  assist 
in  supporting  the  family  may  be  taken  into  considera- 
tion.^    The  loss  of  service  of  a  child,  who  was  killed  by 


»  Staal  V.  R.  R.  Co.,  ,"57  Mich.  239. 
The  court  on  cappeal  haa  refused  to  dis- 
turb verdicts  as  follows:  Four  thousand 
five  hundred  dollars  for  the  negligent 
killing  of  a  laborer  sixty  years  old,  of 
good  iioalth  and  industrious  habits: 
Walter  ?-.  R.  R.  Co.,  3t>  Iowa,  33. 
Three  thousand  dollars  for  the  death 
of  a  husband,  leaving  an  infant  child: 
111.  etc.  R.  R.  Co.  V.  Hoffman,  67  111. 
1287.  Two  thousand  five  hundred 
dollars  for  the  death  of  a  workman, 
in  fair  health,  who  could  earn  82.25 
per  day,  and  whose  family  was  largely 
dependent  on  him  for  support:  Annas 
■V.  Milwaukee  and  Northern  R.  R.  Co., 
G7  Wis.  40.  Eight  thousand  dollars, 
where  plaintiff's  husband  was  killed, 
she  being  an  invalid  with  a  daughter: 
Cook  r.  R.  R.  Co.,  00  Cal.  004.  Fif- 
teen  thousand  dollars  for  the  death  of 
a  young  and  robust  skilled  workman: 
East  I^iuo  etc.  R.  R.  Co.  v.  Smith,  65 
Tux.  107.  Two  thousand  dollars  for  the 
ileath  of  a  married  unskilled  laborer, 
iifty-llve  years  ohl,  leaving  a  widow 
and  seven  children:  Mulcairns  v, 
Jauesville,  07  Wis.  24. 


^  Mclntyre  v.  R. 
287. 

■*  Birmingham  v. 
69;  Rockford  etc. 
laney,  82  111.  198; 


R.  Co.,  37  N.   Y. 

Dover,  2  Rrewst. 
R.  R.  Co.  V.  Be- 
25  Am.  Rep.  308; 
Penn.  etc.  R.  R.  Co  r.  Bantoin,  .'>4  Pa. 
St.  495;  Caldwell  v.  Brown,  53  Pa.  St. 
453;  Quin  v.  Moore,  15  N.  Y.  432; 
Chicago  V.  Hesing,  83  HI.  205;  25  Am. 
Rep.  378;  Chicago  v,  Scholten,  75  111. 
409;  Lehman  i\  Brooklyn,  29  Baib. 
234;  Barley  v.  R.  R.  Co.,  4  P.iss.  4.30; 
Ford  V.  Monroe,  20  Wend.  210;  Dur- 
kee  V.  R.  R.  Co.,  50  Cal.  388;  38  Am. 
Rep.  59. 

'  St.  Louis  etc.  R.  R.  Co.  v.  Free- 
man, 30  Ark.  41;  Benton  v.  R.  II.  Co., 
55  Iowa,  490. 

»  Potter  V.  R.  R.  Co.,  21  Wis.  37?; 
94  Am.  Dee.  548;  22  AVis.  015;  Dur'ae 
V.  R.  R.  Co.,  50  Cal.  388;  38  Am.  Kep. 
59. 

« Little  Rock  etc.  R.  R.  Co.  v. 
Barker,  33  Ark.  350;  34  Am.  Rep.  44; 
Galveston  v.  Barbour,  02  Tex.  172; 
50  Am.  Rep.  519. 

'  Barley  v.  R.  R.  Co.,  4  Biss.  430. 


§  1022 


rKIlSONAf,   WllONGS. 


1734 


iiop:lip,'cnco,an(l  Ihocxponsoof  the  sickness  of  tho  mother, 
cau.srd  by  licr  gvu'l",  arn  projxir  items  of  (lama;^e.'  Al- 
lliuuf^h  tho  j)aronts  luul  given  his  time  to  the  boy  killeil, 
they  may  recover  (Uimages  lor  loss  of  su|)[)ort,  ete.'^  Jt 
cannot  bo  ruled  as  matter  of  law  that  tlic  brothers  (ind 
sisters  of  the  j)erson  kill(>d  (a  minor)  sustained  no  h>ss.''' 
Tlic  following  verdicts  luive  been  sustained  on  appeal: 
Eight  hundred  dollars  for  tho  death  of  a  child  "^ur 
3'ears; '  two  t]iousan<l  dollars  for  th(>  death  of  a  eh..  .  l5e- 
twcen  six  and  seven  years;''  three  thousand  dollars  for  the 
death  of  a  child  eighteen  months  old;"  live  thousand  dol- 
lars for  tho  killing  of  a  child  seven  years  old;^  two  thou- 
sand dollars  for  killing  a  boy  eighteen  months  old."*  l\\il  u 
verdict  of  eighteen  jiundred  dollars,  where  tho  child  was  fivo 
3'^ears  of  age,  was  held  excessive."  Where  a  father  tlainis 
damages  for  the  negligent  killing  of  his  son,  a  verdict  of 
four  thousand  dollars  cannot  bo  sustained  on  evidence 
merely  of  the  fact  of  relationship,  there  being  no  evidence 
of  the  ('ondition,  pecuniary  or  physical,  of  tho  father,  or 
of  his  agc."^  A  verdict  for  ten  thousand  dollars  s  set 
aside,  it   appearing  that  the  next  of  kin  entitle  the 

benefit  of  the  verdict  was  a  mother  in  comfortable  pecu- 
niary circumstances,  who  had  derived  no  prolit  from  tho 
earnings  of  her  son,  nor  was  likely  to  prolit  bj'  his  earn- 
ings had  he  lived."  Four  thousand  live  hundred  dollars 
for  loss  of  services  caused  by  the  death  of  a  child  fivo 
years  old  was  held  excessive." 


'  Ford  V.  Munroe,  20  Wcud.  210. 

■■^  St.  Jo.se])Ii  etc.  11.  It,  Co.  t'. 
Whc'Llcr,  .35  Kan.  1S.J. 

■>  Cliicago  V.  Keefe,  114  111.  222;  55 
Am.  Hep.  SCO. 

*  Cliicago  r.  Major,  18  111.  .340;  G8 
Am.  Dec.  .'5!)3;  Chicago  r.  Hcsiiig,  83 
111.  207;  25  Am.  Hep.  378. 

■'  Cliicago  etc.  II.  It.  Co,  v.  Becker, 
84  111.  4S.3. 

•^  Louisville  etc.  It.  R.  Co,  v.  Coniior, 
9  Heisk.  20. 


'  IMycrs  v,  San  Francisco,  42  Cal. 
215. 

^Schricr    v.   R.    R.    Co.,    G5    Wis. 
457. 

«  Tenn.  Co.  v.  Lilly,  73  Ind.  252. 

•0  Carpenter  v.  It.  R.  Co.,  38  ilun, 
IIG. 

"  Atchison  etc.  R.  R.  Co.  t>.  Brown, 
2G  Kan.  443. 

•^  Little  Rock  etc.  Co.  v.  Barker,  33  1 
Ark.  350;  34  Am.  Rep.  44. 


•  Con; 

MJli, 
55  111.  ;; 
Bayli..Jii 
s.iyin^ 
aoa.s(!of 

to    Ih!  (H 

pecuniae 
death  to 
sucii  doc 
see.  L>;;,-,| 
needs  of 
any  moni 
rested    II 
their  wan 
Would  h, 
it  Was  ;ic( 
rca.'ioiiuM 
hiyJiletiiij 
i^y  M-ero  p 


L734 


too 


TOUTS   IN    OENEUAL. 


§  102: 


Ihcr, 
M- 

/     U 

...    l50- 

I'or  Iho 
ul  (lo\- 
)  thuu- 
lUit  II 

rdict  of 
vidcnco 
videuce 
Lther,  or 
s  set 
the 
pecu- 
rom  tho 
is  oarn- 
tloUavs 
ild  five 


;o,  42  Cal. 
05    Wis. 
ml.  '.J52. 

J.  V.  Brown, 
,  Barker,  ">'i 


[Q 


IiJ-fRTn.vTioN'fi.  —  A  fathor  claliiKvl  damajvps  for  tho  dnnth  of 
liis  Hi>n  (\Vflv(^  years  ofa^o.  Tlu'  lioy  fiad  liccn  livinjf  at  li'mii', 
eaniiii^' nolliiii;^,  and  hfinj,' j)i'cuiii;irily  a  hurdon  to  Ids  iiarmts; 
l)ut  it  was  Haid  that  in  n  year  or  so  ho  might  liavo  },;oiie  to  work 
in  a  ncighliorin!^  factory,  and  have  takcti  hack  money  to  his 
panMits.  y/(7</,  that  lh((  father  was  entille(l  t(j  «hiLa'ji;es:  Uraiii- 
nrll  V.  I.cr»,  2\)  L.  T.  82,  'J(iG.  The  action  was  hnuiudit,  hy  a 
widow  lor  llie  (hjath  of  lier  t^on,  a,i,'('d  fourteen,  lli  r  hush;ind, 
a  lierth  had  heen  killi'il  l)y  tlie  same  accident,  i'nr  whicii  sIuj 
had  recovered  four  hundred  ))ound9  in  another  action.  Thi' 
hoy  was  heint^  sent  to  seliooh  hut  when  at  lioine  used  to  work 
on  the  farm  in  his  father's  ahscnee.  He  never  earned  any  wa;j;es, 
but  his  capaliilities  were  vahied  at  Hixpenco  a  day.  Iftll,  tliat 
the  i^rohahihty  (increased  hy  tho  past  filial  eoiuhict  of  the 
decea.'^erl,  and  eniumced  hy  n,;..- ;n  of  tho  father's  death)  that 
he  would  have  (uiahli'd  his  mother  !a  earn  more,  or  would  liavo 
devoted  part  of  Ids  earnings  to  lier  8U])port,  was  evideno'  to  go 
to  the  jury  upon  the  question  of  damages,  and  th;it  a  verdict 
could  not  have  h(!en  diret;ted  for  the  dereadants:  Cundoii  v.  li. 
E.  Co,,  I.  11.  10  C.  L.  415. 

§  1023.  Evidence  —  In  General.  —  Tho  wealth  of  tho 
defendant  is  irrelevant,'  and  so  is,  ordinarily,  the  poverty 
of  the  ]">]aintiir."  But  ovideiico  as  to  tho  amount  of  i>rop- 
erty  deceased  has  acquired,  his  liabits  of  industry,  his 
ability  to  make  money,  and  his  success  in  business,  is 
admirisiblo  as  a  basis  of  damages;'  or  that  the  plaintiff 
was  in  indigent  circumstances  and  deiiendcnt  upon  her 


1  Commt  ?•.  Ciriirm.  48  111.  410. 

^  Illilll>i^  etc.  K.  R.  Co.  r.  Biichea, 
55  111.  .'iT'.t;  C'liic;iL;octo.  R.  R.  Co.  r. 
BaylL'kl,  "1  Mich.  'JOo;  tlio  court 
g:iyiiig:  "1"li<;  (!;iiiuij^c.s  reciivcralilo  in 
a  case  of  thi^  iiLitiirc  arc  liy  tin:  statute 
to  1)0  as.sc<;o(l  uilli  rcforcnci!  'tollu' 
pecuniary  injuries  re  ailti.i^  Iroiii  luuh 
dealli  to  the  wit'oauil  next  of  kin  of 
such  ilociascd  person  ':  (Join[).  Law  , 
see.  'Jl!,")!.  Tliciy  liavcuo  rei^ard  to  the 
needs  of  tlu;  jtei'sons  desii^nated,  or  to 
any  moral  olilii^ation  wliicli  may  liavo 
restcil    upon  tho  ileciaseil  tc)  supply 

their  wants What   tlio  family 

would  lo.;o  Ity  tln!(leatli  would  he  what 
it  was  accustomed  to  receive,  or  hail 
reabonahlo  expectation  of  receiving,  in 
his  liletime!  and  to  show  that  the  iam- 
ily  were  poor  baa  110  teuJeucy  toward 


showing  whether  tliis  wa.j  or  was  likely 

to  bclargoor  .siiiidl Theiv  arc,  it 

is  true,  yomo  ca:  es  ia  whic'.i,  pcrliaps, 
buch  evidence  must  l)o  received,  bo- 
eauso  it  tends  to  c  .tahlish  a  i.ioi'al 
obligation  to  «leniaud  i.'^sitslanco  in  tho 
future  from  one  at  t!io  time  incapa- 
ble of  giving  it;  ai  where  tlio  person 
killed  was  a  very  y.mng  child,  and  at 
present  contributiu',  nothing  in  a'dof 
any  one:  Ewen  v.  R.  R.  Co.,  oS  Wis. 
GK!;  Barley  r.  R.  R.  Co.,  4  Bis  ;.  430; 
Cliicago  V.  i'owerj,  -'.J  111.  10!).  But  it 
is  a  bort  of  cvidcaci;  that  wLca  neces- 
sarily received  shoul  1  be  used   with 


caution 


Chicaao  etc.  R.  R.  Co.  v. 


iJenry,    7  111.  App.   322;    Chicago  v. 
McCuUoch,  10  Ul.  App.  439. 
'  JShaber  v.  E.  R.  Co.,  28  Miuu.  103. 


§  1024 


PERSONAL   WRONGS. 


1736 


son.*  EviJeiice  of  the  number  in  the  deceased's  family 
is  inadmissible  to  show  the  value  of  his  life  to  his  estate.^ 
A  woman  may  show  how  many  children  are  dependent 
on  her;'  that  she  had  no  means  of  support  except  what 
her  liusband  furnished  her;''  tluit  the  deceased  was  a  kind 
and  good  husband  and  father.^  It  is  not  competent  on 
the  question  of  damages  to  show  that  deceased  was  in 
the  line  of  promotion,  and  would  have  received  greater 
wages.®  Tlio  negotiations  of  the  plaintiff  with  the  de- 
fendant, with  reference  to  the  settlement  of  the  claim  for 
damages,  arc  not  admissible  for  the  purpose  of  showing 
hars-h  and  oppressive  conduct  of  the  defendant  in  resist- 
ing the  claim,  his  liability  to  pay  some  damages  not 
having  been  denied/ 

§  1024.  In  Mitigation.  —  As  evidence  as  to  the  business, 
education,  and  habits  of  sobriety  and  economy  of  the 
'"  3eaped  is  admissible,*  so  also  the  cliaractf  r  of  the  de- 
ceased as  a  (li'unken,  worthless  man,  making  no  provision 
for  his  family,  but  being  a  burden  to  them  for  his  sup- 
port, is  proper  in  mitigation  of  damages.''  In  a  suit  by  a 
widow  for  the  homicide  of  her  husband,  the  record  of  the 
acquittal  of  the  defendant  under  an  indictment  for  the 
murder  of  the  husband  is  not  evidence  for  the  defendant 
in  a  civil  suit."  The  receipt  of  money,  by  those  for  whoso 
benefit  the  action  ^\'as  brought,  on  a  policy  of  insurance 
on  the  life  of  the  deceased,  cannot  be  shown  to  redaco 
the  amount  of  recovery;"  or  that  the  deceased  was  in- 
sured.*- Tlic  probability  of  the  widow's  subsequent  mar- 
Kindred,  57 


'  Int.  etc  R.  R.  Co. 
Tex.  41)1. 

^  Beems  r.   R.    R.   Co.,    58    Iowa, 
150. 

*  Mulcairns    /•.  Janesville,  67  Wia. 
25;  Beard  r.  8kcldoii,  13  111.  App.  54. 

*  Annas  v.  R.  R.  Co.,  67  Wis.  46; 
as  Am.  Rep.  648. 

"Cook  V.  R.  R.  Co.,  eOCal.  604. 
6  Brown  v.  R.  R.  Co.,  64  Iowa,  652. 
T  Green  v.  R.  R.  Co.,  32  Barb.  24. 
•Taylor  v.  R.  R.  Co.,  45  Cal.  J(23; 


Chicago  etc.  R.  R.  Co.  v.  Clark,  108 
111.  ii:«. 

'•'  Niiiilmlle  etc.  R.  R.  Co.  v.  Prince, 
2  Heisk.  580. 

'^  Cotiingbam  v.  Weeks,  54  f  ra.  275. 

"  Sherlock  v.  Alliiirr,  44  Ind.  184; 
Althorf  r.  Wolfe,  22  N.  Y.  355;  Car- 
roll V.  R.  R.  Co.,  SS  Mo,  239;  57  Am. 
Rep.  382. 

^■'  Kellogg  V.  R.  R.  Co.,  79  N.  Y.  72; 
North  Peaasylvania  R.  R,  Co.  v.  Kirk, 
90  Pa.  St.  16. 


'1737 


TORTS  IN   QENEBAL. 


§1025 


riage  is  irrelevant.*  It  is  admissible  for  a  defendant  to 
show  tluit  a  plaintifif  was  not  entitled  to  the  services  of 
his  minor  child,  whose  death  is  in  question.^  A  master 
cannot  bring  an  action  for  the  negligent  killing  of  his 
own  son,  who  was  merely  his  servant,  for  the  benefit  lost 
must  arise  through  relationship,  and  not  through  con- 
tract; and  if  no  loss  was  due  to  the  former  as  such,  none 
due  to  the  latter  could  be  taken  into  account.^ 


§  1025.  Pleading.  —  Where  the  statute  gives  the  rem- 
edy in  favor  of  certain  specified  persons,  tli-e  petition 
should  name  the  person  for  whose  benefit  the  suit  is 
brought,  and  state  the  relationship.*  Where  tlie  recovery 
is  to  bo  distributed  like  personal  estate,  it  M-ill  bo  pre- 
sumed, without  any  allegation,  that  kindred  exist.*^  Where 
t.'ifc  statute  gives  a  right  of  action  to  the  parent  of  one 
who  was  a  minor  and  unmarried,  the  petition  is  defective 
in  not  stating  that  he  was  unmarried.^  In  an  action  by 
an  administrator,  the  complaint  need  not  allc!:,'o  that  the 
intestate  left  next  of  kin.^  In  stating  the  cau.jo  of  action, 
the  statute  need  not  be  referred  to.®  The  particular  acts  of 
negligence  causing  the  death  of  the  party  injuTod  need  not 
be  set  out; "  and  it  is  not  necessary  to  allege  that  pecuniary 
damage  has  been  sustained.'''    But  under  a  statute  giving 


Y 

,Kixk, 


72; 


^  Baltimoro  and  Ohio  R,  R.  Co.  v. 
State,  S3  Lid.  542;  Georgia  etc.  R.  R. 
Co.  V.  (iarr,  57  Ca.  277;  24  Am.  Rep. 
492.  And  nQo  iScamaa  v.  Farmers'  Loaa 
Co.,  15  V/itJ.  578. 

^  Quincy  Coal  Co.  v.  Hood,  77  111. 
C8. 

^  Sykcs  V,  Northeastern  R.  R.  Co., 
44  L.  J.  Com.  P.  191. 

*  Qubcy  Coal  Co.  v.  Hood,  77  111. 
C8;  JiiKliana  etc.  R.  R.  Co.  v.  Keeley, 
23  lad.  r.]3;  S.ififord  v.  Drew,  .3  Duer, 
627.  CoHfrn,  Keller  v.R.  R.  Co.,  24 
How.  I'r.  172.  Ii\  Indiana  and  other 
states  au  averment  that  there  are 
persona  entitled  is  sufficient  without 
namiuj;tli'nn:  Jeffersonville  etc.  R.  R. 
Co.  r.  Uendricks,  41  Ind.  49;  Chicago 
etc.  R.  R.  Co.  V.  Morris,  26  111.  400; 


Woodward  v.  R.  R.  ( '>.,  2.3  Wis.  400; 
Conant  v.  Griffin,  48  1 '  1.  410. 

*  Alabama  etc.  II.  1 ' .  Co.  v.  Waller, 
48  Ala.  451). 

6  Dulaney  v.  R.  R.  C  >.,  21  Mo.  App. 
597. 

MVarner  v.  R.  R  Co.,  94  N.  C. 
250. 

8  White  V.  Maxcy,  C '.  Mo.  552. 

» Dolan  V.  Mobeil  ,  17  Mo.  App. 
436;  Indianapolis  c;  •.  11.  R.  Co.  v. 
Keeley's  Admr,  23I:'.,1.  1.33;  OldHeld 
v.R.  R.  Co.,  14  N.  \  .  :U0;  Alabama 
etc.  R.  R.  Co.  V.  Wa'l.  ■■,  48  Al ..  4.VJ; 
State  V.  R.  R.  Co.,  5.2  \.  U.  528;  but 
see  Lexington  v.  Lewi.'s  Adm'x,  10 
Bush,  677. 

"  Chapman  w.  Roth  v  11,  27  L.  J.  Q. 
B.  315;  4Jur.,N.  ;S.,  1180. 


I 


§  1026 


PERSONAL    WRONGS. 


1738 


an  action  for  the  killing  of  a  person  by  the  nse  of  deadly 
weapons,  "  not  in  self-defen&e,"  it  must  be  alleged  that 
the  killing  was  not  done  in  self-defense.'  It  is  not  neces- 
sary to  allege  that  defendant's  negligence  was  such  that 
if  death  had  not  ensued  the  injured  person  would  him- 
self have  been  entitled  to  recover  for  the  injury."  In  an 
action  for  the  death  of  the  wife,  the  husband  and  the  per- 
sonal rein'osentativo  of  the  wife  must  join,  under  the  In- 
diana statute.^  An  action  for  the  death  of  the  deceased 
cannot  be  joined  with  an  action  by  the  plaintilF  to  re- 
cover for  personal  injuries  received  by  himself,  caused  by 
the  same  negligent  act.* 

§  1026.  Contract  and  Tort  —  Waiving  Contract  and 
Suing  in  Tort.  —  The  same  act  may  amount  to  both  a 
breach  of  a  contract  and  a  tort.  TJius  on  a  false  and 
fraudulent  warranty,  the  purchaser  may  sue  for  the 
breach  of  the  warranty^  or  he  may  sue  for  the  fraud,  i.  e., 
for  the  tort.'^  So  in  the  case  of  a  common  carrier,  whose 
obligation  by  the  law  is  to  carry  safely,  but  who  may 
also  contract  to  do  so;*^  so  in  the  case  of  an  innkeeper.'^ 
Wliere  theio  is  an  employment,  which  employment  itself 
creates  a  diity,  an  action  on  the  case  will  be  for  a  breach 
of  that  duly,  aUhougli  it  may  consist  in  doing  some- 
thing contrary  to  an  agreement  made  in  the  course  of 
such  employment  by  the  party  upon  whom  the  duty  is 
cast.^ 

Illustrations.  —  A  peison  had  by  contract  a  rip;ht  to  float 
logs  through  another's  dam,  agreeing  to  pay  for  all  daruages 

1  Becker  r.  Crow,  7  Bush,  198.  519;  West  r.  Emorv,   J  7  Vt.  583;  4t 

'i  Pliilaaulplii  I    etc.    R.    R.    Co.    V.  Am.    Due.    MK!;    Ives    r.    Ciirt-r,    24 

State.  .58  Md.  :;:•_'.  Conn.  .'".Oi!:  I).,l>ell  v.  Stevens,  .")  \hm\. 

^Loiig  r.  Mon-ison,  14  Iiul.  595;  77  &  R.  4iW;  Xewell  r.  \Um\,  4.1  i\.  II. 

Am.  Dec.  72.  421;    Jolmsou  i\  McDani- 1,    l.l    Aik. 

*  Cincinnati  etc.  R.  R.  Co.  r.  Clics-  109. 

tcr,    57  Inil.    'J'.'T.     But   such  joimler  ''See     Bailments  —  Carrier.s,      j)Oxt, 

must  lie  ilel'eated  betDre  the  answer  is  Division  III. 

filed:     Cliik^s    -.    Drake,  2  Mot.   (Ky. )  '.See      Bailments— Carrierr^,     jioM, 

410;  74  Am.   Dec.  400.  Division  111. 

^  ^  Laugridge  <•.  Lcuy,  2  Meea.  &  W.  *  Courtcuay  v.  Earle,  10  Com.  li.  83. 


1738 


1730 


TORTS    IN   GENERAL. 


1027 


eadly 

that 
leces- 
i  that 

him- 
lu  an 
c  per- 

LIC   Iii- 
ccased 
to  ro- 
sed by 

ct  and 

both  a 
rfc  and 
for   tho 
ul,  i.  c, 
,  whose 
10  may 
kocperJ 
vt  itself 
,  breach 
sonie- 
t)\ivse   of 
duty  is 

to  float 
damages 

't.  r>s:^;  44 

■:irt^r,     24 

<     .")  DfAvl. 

h  N.  H. 

I,   ir.   Aik. 

lora,  fio-'t, 
ier^^,  I'oxf, 
Couu  B.  83. 


which  he  might  do  to  tho  dam.  IIo  negligently  injurocl  tho 
dam.  Held,  that  ho  miglit  Ijo  sued  in  tort  for  the  injury:  Ik'tDi 
V.  McLcnn,  48  Vt.  412;  21  Am.  Rep.  130. 

§  1027.     Waiving  Tort  and  Suing  on  Contract.  —  In 

some  cases  a  party  may  treat  a  tort  as  also  a  breach 
of  a  contract,  express  or  implied,  and  may,  waiving 
the  tort,  sue  for  the  breach  of  the  contract.^  Thus  where 
b}'  a  tortious  act  a  jierson  has  gotten  possession  of  money 
belonging  to  another,  the  latter  may  sue  him  on  an  im- 
plied promise  to  repa}'  it."  "  If  a  man  has  taken  pos- 
session of  property,  and  sold  or  disposed  of  it  without 
lawful  authority,  the  owner  may  either  disaflirm  his  act 
and  treat  him  as  a  wrong-doer,  and  sue  him  for  a  trespass 
or  for  a  conversion  of  the  property,  or  he  may  affirm  his 
acts  and  treat  him  as  his  agent,  and  claim  tho  benefit  of 
the  transaction;  and  if  he  has  once  affirmed  his  acts  and 
treated  him  as  an  agent,  he  cannot  afterward  treat  him 
as  a  w-rong-doer,  nor  can  he  affirm  his  acts  in  part  and 
avoid  them  as  to  the  rest.  If,  therefore,  goods  have  been 
sold  by  a  wrong-doer,  and  the  owner  thinks  fit  to  receive 
the  price,  or  part  thereof,  he  ratifies  and  adopts  tho  trans- 
action, and  cannot  afterward  treat  it  as  a  wrong."''  In 
some  courts  it  is  held  that  assiivipsit  cannot  be  main- 
tained unless  the  property  wrongfully  taken  from  tho 
plainiilFlias  been  converted  into  money;''  while  in  others 

43; 


'  Young  r.   ^larshall,    8  Biiig 
Hull  t:  rockham,  8  I^  I.  .370. 

-  Codloy  on  Torts,  93;  citing  Hall  v. 
reckhr.ii,  8  1^  I.  370;  Rand  /•.  Nos- 
luitli,  (H  -Mu.  Ill;  Boston  etc.  II.  B. 
Co.  v.  IVma,  I  (rray,  83;  Shaw  r.  Cof- 
iiu.  ."iS  Mo.  'r)4;  4  A'u.  Rep.  290;  Howe 
r.  Clancy,  it?,  Mc.  i:;0;  Neat  r.  Hard- 
ing, 20  L.  .T.,  N.  S.,  250;  llitchin 
r.  Canii,l)cll,  2  \V.  Black.  827;  AI)bottd 
r.  Barry,  2  Brod.  &  B.  30!);  Powell  r. 
Bees,  7  Ad.  &  E.  421);  Berlcy  r.  Tay- 
lor, r>  Hill,  577;  Mdlcr  i\  Miller,  9 
Tick.  34;  22  Am.  Dec.  410;  Gihnore  r. 
Wilbur,  12  Pick.  120;  Applctoii  r.Bau- 
crot't,  10  Met.  231 ;  Morrisiou  /•.  Bogt^r.s, 
2  pScain.   317;  Staat  v.  Evans,  35  111. 


Gray  n  Griffith,  10  Watts,  431 ;  (iood- 
cnow  r.  Luydcr,  3  G.  Greene,  599; 
W'hitor.  Brooks,  43  N.  H.  402;  Lord 
V.  French,  (il  Me.  420. 

^  Addison  on  T(,'rts,  94. 

*  Cooley  on  Tort-^,  94;  citing  Barlow 
r.Stalworth,  27  ( Ja.  517;  Pik(w.  Bright, 
20  Ala.  332;  Ivnerson  v.  McXaniara, 
41  Mo.  505;  ISoycs  /•.  Loriiig,  55  Mo. 
408;  .Jones  r.  Hoar,  5  Pick.  285;  (rlass 
Co.  l:  Wolcott,  2  Allen,  227;  Manny). 
Locke,  11  N.  If.  24i);  Smith  ?•.  Smith, 
43  N.  H.  530;  Moi'rison  r.  Bogers,  3 
111.  317;  0'Re(>r  v.  Strong,  i:'.  111.  (iSS; 
Kclty  /'.  Owens.  4  Chand.  1(10;  ICIHott 
r.  Jackson,  3  Wis.  (il.);  Stearns  r.  Dil- 
linaham,  22  Vt.  024;  54  Am.  Dec.  S8; 
455;  Lcightou  v.  Preatoa,  9  Gill,  201;    Willett  v.    Willett,    3    Watts,    277; 


§  1028 


PERSONAL  WRONGS. 


1740 


it  is  sufficient  if  the  defendant  has  converted  it  in  any 

§  1028.    Proximate  and  Remote  Cause — In  General. — 

A  person  is  liable  only  for  the  proximate,  and  not  for  tho 
remote,  cflect  of  his  acts."    Proximate  damages  are  defined, 
in  a  California  case,  in  the  following  language:  "A  long 
series  of  judicial  decisions  has  defined  proximate  or  im- 
mediuto  and  direct  damages  to  be  the  ordinary  and  nat- 
ural results  of  the  negligence,  such  as  are  usual,  and  as 
therefore  might  have  been  expected;  and  this  includes  in 
the  category  of  remote  damages  such  as  are  the  result  of 
an  accidental  or  unusual  combination  of  circumstances 
which  would   not  be  reasonably  anticipated,  and   over 
which  tho   negligent  party  has    no  control.'"     Natural, 
proximate,  and  legal  results  are  all  that  damages  can  be 
recovered  for,  even  under  a  statute  entitling  one  "  to  re- 
cover any  damage."*     Defendant's  act  charged  to  be  neg- 
ligent may  be  deemed  the  proximate  cause  of  the  injury 
complained  of,  if  the  injury  might  reasonably  be  expected 
to  result.     It  is  not  enough  to  show  merely  that  the  in- 
jury was  the  natural  consequence  of  the  act.^     While  the 
immediate  cause  of  an  accident  may  have  been  tho  break- 


Pearsoll  r.  Chapiii,  44  Pa.  St.  0;  Guth- 
rie /•.  W.cklitfo,  1  A.  K.  Marsh.  83; 
Fuller  r.  Duron,  30  Ala.  73;  7(3  Am. 
Dec.  318;  Tucker  r.  .Tewett,  32  Conn. 
5G3;  8antlurd  r.  Hamilton,  3  Dana, 
550;  Ryers  v.  Grceubush,  57  Me. 
441. 

'  Cooley  on  Torts,  95;  citing  Hal- 
lock  r.  Mixer,  l(j  Cal.  574;  Cooper  v. 
Berry,  l.'I  Cra.  570:  Randolph  Iron  Co. 
V.  Elliott,  34  N.J.  L.  184;  Noyesr.  Lor- 
ing,  r5  Mc.  40S;  Watson  v.  Stcver,  25 
Micii.  380:  Moses  r.  Arnold,  43  Iowa, 
187;  Miller  r.  Miller,  7  Pick.  133; 
19  Am.  Dec.  204;  Budd  r.  Hilar,  27  N. 
J.  L.  43;Stockettr  Watkins's  Adm'r, 
2  Gill  &  .T.  320;  Wolcli  v.  Bagg,  12 
Mich.  42;  Hill  r.  Davis,  3  N.  H.  384; 
Floyd  r.  'Wiley,  1  Mo.  430;  Ford  v. 
Caldwell,  3  Hiil  (S.  (.'.),  248;  Baker  v. 
Cory,  15  Ohio,  9;  Piquet  v,  Allison, 


12  Mich.  328;  86  Am.  Dec.  54;  \Veh. 
ster  V".  Drinkwater,  5  Mc.  319;  17  Am. 
Dec.  2.58;  Jones  v.  Buz;:ard,  1  llcnip. 
240;  Johnson  n  Reed,  8  Ark.  202;  La- 
beaumc  v.  Hill,  1  Mo.  043;  note  to 
Putnam  v.  Wise,  1  Hill,  240;  37  Am. 
Dec.  .309;  note  to  2  Grcoul.  Ev.,  sec. 
108;  Schweizer  f.  Wciber,  G  Rich.  159; 
Hudson  V.  Gilliland,  25  Ark.  ISO. 

^  Scott  i\  Shepherd,  3  Wils.  203; 
Henry  v.  R.  R.  Co.,  50  Cal.  183;  Har- 
rison V.  Berkby,  1  Stroh.  525;  47  Am. 
Dec.  578;  Fleming  v.  Beck,  48  Pa.  St. 
309;  Isbell  v.  R.  R.  Co.,  27  Conn.  .393; 
71  Am.  Dec.  78. 

^  McKinstry,  J.,  in  Henry  v.  R.  R. 
Co.,  50  Cal.  183. 

*  Doiiuell  V.  Jones,  13  Ala.  490;  48 
Am.  Dec.  GO. 

*  Atkinson  v.  Transportation  Co.,  CO 
Wis.  141;  50  Am.  Rep.  352. 


1741 


TORTS   IN  OENERAi. 


§  1028 


ing  of  a  chain,  an  act  the  unnecessary  doing  of  which 
would  probably  cause  the  chain  to  break  may  be  regarded 
as  the  proximate  cause  of  the  accident.^  If,  by  reason  of 
the  engineer's  negligence,  the  engine  strikes  a  cow,  and 
the  cow  rebounds  and  strikes  a  woman,  the  negligence 
of  the  engineer  is  the  proximate  cause  of  the  injury  to 
the  woman.''  Where  a  child  fell  into  an  excavation  neg- 
ligently left  open  on  a  public  sidewalk,  and  was  hurt 
by  striking  upon  broken  glass  at  the  bottom,  it  was  held 
that  the  defect  in  the  sidewalk  was  the  proximate  cause 
of  injury.'  In  a  recent  English  case,  certain  cattle  of  the 
plaintiffs  were  driven  along  the  road,  across  which  were 
some  sidings  belonging  to  the  defendants,  when  some 
trucks  of  defendants  were  allowed  to  run  down  it,  across 
the  road,  separating  the  cattle  from  the  drovers,  and 
frightening  them  so  that  some  of  them  ran  down  the 
road,  broke  through  an  imperfect  fence  into  an  orchard, 
whence  they  strayed  upon  defendants'  railroad  and  wero 
killed  by  a  passing  train.  The  court  of  appeal,  affirming 
the  decision  of  the  court  of  queen's  bench,  held  that  tho 
defendants  were  liable,  and  that  the  damage* was  not  too 
remote.'* 


»  King  V.  R.  R.  Co.,  25  Fed.  Rep.  799. 

^  Alabama  etc.  R.  R.  Co.  v.  Chap- 
man, 80  Ala.  615. 

^  City  of  Galveston  v.  Posnainsky,  62 
Tex.  US;  50  Am.  Ren.  517. 

*  Sncjsby  v.  R.  R*.  Co.,  L.  R.  9 
Q.  li.  203.  Said  Lord  Blackburn, 
iu  this  case:  "The  question  is,  Are 
the  defendants,  whose  negligence 
drove  the  cattle  out  of  tlio  cus- 
totly  of  the  plaintiff,  liable  for  their 
death,  or  is  the  damage  too  remote? 
No  doubt  the  rule  of  our  law  is,  that 
the  immediate  cause,  the  ciumi  prox- 
ima,  and  not  the  remote  cause,  is  to 
be  looked  at;  for,  as  Lord  Bacon  says, 
'  It  were  infinite  for  the  law  to  judge 
the  causes  of  causes,  and  their  impul- 
sions one  of  another;  therefore  it 
contontoth  itself  with  the  immediate 
cau.se,  and  judgeth  of  acts  by  that, 
without  looking  to  any  further  de- 
gree ':  Bac.  Max.  Reg.  I,    The  rule  is 


sometimes  difficult  to  apply,  but  in  a 
case  like  tho  i)resent,  tiiit*  much  is 
clear,  that  so  long  as  tho  want  of  con- 
trol over  tho  cattle  remain.^  without 
any  fault  of  tho  owner,  the  caui^a 
proxima  is  that  which  caused  tlio  es- 
cape, for  the  consequences  of  which  he 
who  caused  it  is  rcspon.siblo.  Sup- 
pose, for  instance,  iu  tormer  times  a 
reclaimed  falcon  were  frightened  and 
escaped.  Tho  natural  consequence 
would  be  that  it  would  be  lost  alto- 
gether, and  tlio  person  who  negligently 
frightened  it  would  be  liable.  The 
natural  and  proximate  consequence 
was,  that  it  would  not  be  .^ot  ))ack  at 
all.  So  if  you  luvo  lo.st  control  of 
cattle,  and  cannot  get  them  back  un- 
der your  control  till  thej'  have  run 
into  danger  and  are  killed,  the  death 
is  a  natural  consequence  of  the  negli- 
gence which  caused  you  to  lose  control 
of  them." 


§  1028 


PERSONAL   WRONGS. 


1742 


Illt'strattoxs.— A  is  passinp;  along  the  streot  in  liis  chaise, 
wlicn  the  (log  of  r>  l('a])s  at  his  liorso;  the  hor8('  takos  fright 
and  bcconK's  nnnianageablc;  in  endeavoring  to  njstrain  him,  a 
rein  is  broken;  in  consequence  of  this  the  chaise  is  daslied 
against  a  })ost  and  broken.  The  attack  of  the  dog,  and  not  the 
breaking  of  tlie  rein,  is  the  proximate  cause  of  the  injury;  and 
under  a  statute  making  the  owner  of  vicious  dogs  liable  for 
damages  caused  by  tliem,  B  must  pay  damages  to  A:  Sherman 
V.  Fdi-onr,  1  Allen,  191.  The  driver  of  a  buggy,  in  turning 
from  one  street  into  another,  got  one  of  the  lines  entangled  un- 
der tlie  horse's  tail,  causing  the  horse  to  back  and  fall  into  a 
hole  in  the  embankment  on  which  the  street  was  built.  Held, 
that  the  muncij)ality  was  liable  for  the  consequent  injury: 
//////  V.  Clfij  of  ha„sa.%  54  Mo.  5D8;  14  Am.  Rep.  4.S7.  A  well- 
broken  horse,  frightened  by  the  carriage  striking  raised  logs  iii 
the  traveled  part  of  the  highway,  became  uncontrollable,  ran 
away,  antl  one  hundred  and  twenty-five  feet  distant  threw  out 
and  injured  the  driver,  field,  that  the  defect  in  the  highway 
was  the  proximate  cause  of  the  injury:  Clark  v.  Lebannn,  G3 
jMc.  P)03.  The  balustrade  on  a  flight  of  stairs  in  defendant's 
dry-goods  store  was  obstructed  by  display  figures,  so  that  plain- 
tilf,  a  customer,  was  unable  to  get  hold  of  it,  and  fell  in  conse- 
quence. Jhlil,  that  defendant  was  liable:  Lnrkinv.  O^Neill,  48 
Hun,  501.  An  ox  escapes  from  his  owner's  inclosuro  upon  a 
railroad  track,  by  reason  of  the  neglect  of  the  company  to  fence 
their  track  at  a  given  point.  It  is  thence  driven  by  an  em- 
ployee of  the  com[)any  into  another  man's  pasture,  from  which 
it  strays  across  its  owner's  land,  outside  of  his  inclosure,  onto 
another  part  of  the  track,  and  is  there  killed,  six  hours  in  the 
mean  time  having  intervened.  Held,  that  the  company  is  lia- 
ble for  the  damages,  although  at  the  time  the  ox  is  killed  its 
locomotive  is  being  driven  with  proper  care:  Uilman  v.  R.  R. 
Co.,  00  Me.  235.  In  consequence  of  the  neglect  of  A  to  main- 
tain a  fence  which  he  was  bound  to  maintain,  the  horse  of  A 
strayed  into  the  field  of  B,  and  there  kicked  and  injured  a 
liorse  of  ]].  Held,  that  A  was  liable  to  B;  the  damages  were 
not  too  remote:  Lee  v.  Riley,  11  Jur.,  N.  S.,  527.  A,  whoso  duty 
it  is  to  maintain  a  division  fence,  constructs  the  fence  with  old 
wire  rope;  this  decays  by  rust,  and  some  of  the  fragments  fall 
on  B's  land,  and  are  swallowed  by  B's  cow,  causing  her  death. 
Held,  that  A  is  liable  to  B  for  the  loss  of  the  cow:  Fiiih  v.  Boiv- 
llnfi  Iron  Co.,  L.  R.  3  C.  P.  D.  254.  A,  being  under  a  pre- 
scriptive obligation  to  maintain  a  fence  between  his  own  close 
and  that  of  B,  suHers,  unknowingly,  such  fence  to  bo  broken 
down;  by  reason  of  this,  B's  cow  escapes  into  A's  close,  and 
there  eats  some  leaves  of  a  yew-tree,  and  is  killed.  Held,  that 
A  is  liable  to  B:  Lawrence  v.  Jenkins,  L.  R.  8  Q.  B.  274.    A 


1743 


TORTS   IN   GENERAL. 


§1029 


steam-whiptlo  on  a  locomotive  is  sounded  under  a  bridge  while 
a  tnivc'liT  is  passing  over  it,  wliercat  liis  liori^rs  tak(>  fright, 
run  away,  and  lio  is  injured.  The  negligence  of  tlie  servant  of 
tiie  company  is  the  proximate  cause  of  the  injury,  and  tliu 
company  must  pay  damages:  Pciin>^ylvania  It.  U.  <'o.  v.  ]kir- 
nrtf^  5'.)  ~Va.  St.  25'J;  98  Am.  Dec.  o4().  A  moond  liis  I'arges, 
loaded  with  coal,  in  the  middle  of  a  stream,  makiiig  them  i'a«t 
to  a  hridg(!  below.  In  this  position,  if  any  of  them  should  siidi, 
it  would  [trohably  work  injury  to  tlie  barges  of  otlurs.  CJne  of 
them  sank,  by  an  accident  which  did  not  involve  negligence  in 
A,  and  in  siidcing  lodged  against  and  settled  un<ler  the  l)argcs 
of  1>,  which,  when  the  water  subsided,  were  thereby  injured. 
A  was  liable  to  B:  McGrcw  v.  Stone,  5,3  Pa.  St.  -J.-iG.  A  lire 
breaks  out  in  the  building  of  A;  in  order  to  get  wattu*  to  it,  the 
firemen  are  ol)ligcd  to  lay  their  hose  across  a  railway  track;  a 
train  comes  along  and  cuts  the  hose  in  two,  although  the  ser- 
vants of  the  railway  company  in  charge  of  the  train  have  no- 
tice that  the  hose  is  there,  and  have  time  to  stop  tlie  train  until 
it  can  be  uncoupled  and  removed  from  the  track;  by  reason  i.f 
the  hose  being  thus  cut,  the  building  is  consumed.  If  the  hose 
had  not  been  cut,  the  fire  would  probal^ly  have  bc(!n  extin- 
guished. Hchl,  that  the  cutting  of  the  hose  is  a  proximate 
cause  of  the  destruction  of  A's  building,  and  the  railway  com- 
pany must  pav  damages  to  A:  MelalUr  Coinp.  Cn^i/wj  Co.  v.  R. 
R.  Co.,  lO'J  Mass.  277;  12  Am.  Rep.  G89.  B,  in  the  entry  to  a 
school-room,  seized  A  by  the  arm,  swung  him  around,  and  let 
him  go,  thereby  throwing  him  violently  against  C.  who  instantly 
pushcid  him  away  and  against  a  hat-hook,  which  injured  him. 
Held,  that  A  could  maintain  an  action  of  trespass  against  B: 
Ricker  v.  Freeman,  50  N.  II.  420;  9  Am.  Rep.  2G7. 

§  1029.  Intervening  Causes.  —  If  the  original  act  was 
wrongful,  and  would  naturally,  according  to  the  ordinary 
course  of  events,  prove  injurious  to  some  other  person  or 
persons,  and  does  actually  result  in  injury  tliroujj,li  the 
intervention  of  other  causes  which  are  not  Avrongful,  the 
injury  shall  be  referred  to  the  wrongful  cause,  passing  by 
those  which  were  innocent.^  The  wrong-door  is  liable  for 

'  Coolcy  oil  'Itirts,  70;  Bait.  etc. 
R.  11.  Co.  r.  Rwuicy,  42  Md.  117; 
Iroshcn  Tp.  C'li.  r.  Sears,  7  Conn.  80; 
Morse  V.  llichinoud,  41  Vt.  4:55;  98 
Am.  Dee.  ()()();  Seigel  ?',  Ei.scn,  41 
Cal.  101);  Tucker  r.  llcniiiker,  41  N. 
H.  317;  Wins'  ipv.  Euiiekl,  42  N.  H 


5S  Am.  Dec.  600;  M  leauley  v.  New 
York,  07  N.  Y.  G0_';  Tlhunas  r.  1I„„U, 
4riala.  Hi);  Hollcy  rWiuooski  Tarn- 
pike  Co.,  1  Aiken,  74;  l?vrne  r.  Wil- 
.son,  l.j  I.  C.  L.  K.  :'.:!•_';  [[luit  c. 
Pownal,  9Vt.  411;  I'dwcU  c.  DeviMiv, 
3  Cush.  300;  50  Am.  Dec.  7:!S;  .loli^t 


.... .J       .. - J--    ...    — , — _       ,    ___, _.    _,.     ,-.      y 

107;  Woodward  i».  Aborn,  35  Mo.  271;    v.  Verlcy,   35  111.   58;    85  Am.  Dec 


1029 


PERSONAL  WRONGS. 


1744 


all  the  effects  of  his  act/  unless  they  are  the  result  of  the 
negligence  of  the  injured  person.''  Thus  when  one  is 
injured  by  the  negligence  of  another^  the  latter  is  re- 
sponsible for  any  aggravation  of  the  hurt  caused  by  the 
neglect  of  a  physician,  provided  the  plaintiff  was  not  neg- 
ligent in  selecting  him.'  Where  one  is  injured  by  the 
negligence  of  another,  and  the  injury  renders  the  system 
more  susceptible  to  disease,  and  less  able  to  resist  it, 
and  death  results  from  such  disease,  such  death  is 
legally  attributable  to  such  negligence.*  If  the  origi- 
nal wrong  becomes  injurious  in  consequence  of  the 
intervention  of  some  distinct  wrongful  act  or  omission 
by  another,  the  injury  shall  be  imputed  to  the  first  wrong 
as  the  proximate  cause,®  provided,  however,  that  the  inter- 
vening act  was  one  which  the  defendant  should  either 
have  anticipated  or  have  guarded  against."  If  the  doing 
of  a  particular  act  is  forbidden  by  law,  and  an  agent  for 
which  the  defendant  is  not  responsible  intervenes,  and 
conforming  with  the  defendant's  unlawful  act,  but  with- 
out negligence  on  his  part,  produces  an  injury,  he  (the 
defendant)  will  be  responsible;^  provided,  however,  that 


342;  Lacon  v.  Page,  48  111.  499; 
Aurora  v.  Ptilfer,  5G  111.  270;  Palmer 
V.  Aiulover,  2  Cush.  fiOO;  Titcomb  v. 
R.  R.  Co.,  12  Allen,  254;  Austin  v. 
New  Jersey  Steamboat  Co.,  43  N.  Y. 
75;  .3  Am.  Rep.  6(i3;  Lords  Bailiff- 
Jurats  of  Roiimey  Marsh  v.  Trinity 
House,  L.  K.  5  Ex.  204;  L.  R.  7  Ex. 
247;  Atehisou  v.  King,  9  Kan.  550; 
Clark  V.  Barrington,  41  N.  H.  52; 
Kclsey  i:  Glover,  15  Vt.  708;  Lower 
Macungie  Tp.  v.  Mcrkhoffer,  71  Pa. 
St.  27(i;  Hey  v.  Philadelphia,  81  Pa. 
St.  44;  22  Am.  Rep.  733;  Hull  v. 
Kansas  City,  54  Mo.  598;  14  Am. 
Rep.  487;  AVaid  v.  North  Haven,  43 
Conn.  148;  Baldwin  v.  Tp.  Co.,  40 
Conn.  238;  IG  Am.  Rep.  33.  As  to 
the  rule  in  regard  to  defects  in  high- 
ways, see  Division  v.,  Municipal  Cor- 
porations, pout. 

'  Thompson  on  Negligence,  1091. 

*  See  Contributory  Negligence,  po8^ 


*  Collins  V.  Council  Bluffs,  32  Iowa, 
324;  7  Am.  Rep.  200;  Rice  v.  Des 
Moines,  40  Iowa,  038;  Stover  r\  Blue- 
hill,  51  Me.  439;  Eastman  v.  Sanborn, 
3  Allen,  594;  81  Am.  Dec.  G77;  Pull- 
man Palace  Car  Co.  r.  Bluhm,  109 
111.  20;  50  Am.  Rep.  GOl ;  Looser  v. 
Humphrey,  41  Ohio  St.  378;  52  Am. 
Rep.  8G. 

*  Terre  Haute  etc.  R.  R.  Co.  v. 
Buck,  9G  Ind.  34G;  49  Am.  Rep. 
1G8. 

*  Thompson  on  Negligence,  1089. 
"Thompson  on    Negligence,    1089; 

Carter  r.  Towne,  103  Mass.  507;  Par- 
kers. Cohoes,  10  Him,  531;  Davidson 
V.  Nichol,  11  Allen,  514. 

'  Clark  V.  Chambers,  L.  R.  3  Q.  B. 
D.  327;  Salisbury  v.  Herclicnroder, 
106  Mass.  458;  8  Am.  Rep.  354; 
Dickinson  v.  Boyle,  17  Pick.  78;  28 
Am.  Dec.  281;  Woodward  v.  Aborn, 
35  Me.  271;  58  Am.  Dec.  C99. 


Ex. 


hr,  4 
R.   Co., 
Eaton  V. 
Am.  Dec 
Car.  &  1' 
B.    29; 
I'a.   St. 
lA   Smitl 
Ltaii,  L'G; 
N.  K.   3;j 
N.  Y.  84 
Fdwlur, 
man,  50  I 
\\'Jieoler 
Cliapiiian 
7.'>  Am.   £ 
Co.,    L'O 
Co.,  45  N. 
6"n,  1-2  Mi 
to  ihii  gou. 
tlk'  books, 
owners  coi 
is  not  lial 
but  only  f( 


1745 


TORTS   IN   GENERAL. 


§  1029 


the  intervening  agency  was  one  the  defendant  was  bound 
to  anticipate.'  If  the  damage  has  resulted  directly  from 
concurrent  wrongful  acts  or  neglects  of  two  persons,  each 
of  those  acts  may  be  counted  on  as  the  wrongful  cause, 
and  the  parties  held  responsible,  either  jointly  or  severally, 
for  the  injury."  In  an  action  brought  to  recover  djun- 
ages  caused  by  the  falling  of  lumber,  which  is  alleged  to 
have  l)een  carelessly  piled  by  the  defendant,  if  the  lum- 
ber was  thus  carelessly  piled  up,  the  facts  that  it  remained 
in  that  condition  a  long  time  before  the  injury,  and  that 
the  lumber  was  caused  to  fall  by  the  negligence  of  a 
stranger,  are  no  defense;  for  the  negligence  of  the  defend- 
ant, concurring  with  the  negligence  of  the  stranger,  is  the 
direct  and  proximate  cause  of  the  injury,^  It  is  not  rele- 
vant that  the  plaintiff  or  defendant  were  at  the  time  of 
the  injury  engaged  in  violating  the  law."* 


'Bosworth  V.  Brand,  1  Dana,  377; 
Sharp  r.  Powell,  L,  R.  7  Com.  P. 
2o3. 

'^  Cooloy  on  Torts,  79;  Bartlott  v, 
Boston  ttas  Co.,  117  Mass.  533;  11)  Am. 
Rep.  4?!;  Burrows  v.  Gas  Co.,  L.  R. 
5  Ex.  .'57;  L.  R.  7  Ex.  90;  Griggs 
r.  Fleckonstoiu,  14  Minn.  81;  JOO 
Am.  Dec.  199;  Philaddpliia  v.  Wel- 
Kr,  4  Brewst.  24;  Carpenter  v.  R. 
R.  Co.,  11  Abb.  Pr.,  N.  S.,  41G; 
E;iton  V.  R.  R.  Co.,  11  Allen,  500;  87 
Am.  Dec.  730;  lUitlge  /•.  Goodwin,  5 
Car.  &  P.  190;  Lynch  v.  Nurdin,  1  Q. 
B.  129;  Lockhart  v.  Lichtentlialor,  4G 
I'a.  «t.  151;  McCahill  v.  Kipp,  2  j^. 
D.  Smith,  413;  Peck  v.  NeU,  3  Mc- 
Lean, 2(J;  Smith  v.  Dobson,  3  8cott 
K.  R.  330;  Congrevc  v.  ]\]  organ,  18 
N.  Y.  84;  72  Am.  Dec.  495;  Irvin  r. 
Fiiwler,  5  Robt.  482;  Ricker  r.  Free- 
man, 50  N.  H.  420;  9  Am.  Rep.  207; 
Wiieeler  ?'.  Worcester,  10  Allen,  591; 
Chapman?'.  R.  R.  Co.,  19  N.  Y.  341; 
75  Am.  Dec.  344;  Colgrove  v.  R.  R. 
Co.,  20  N.  Y.  492;  Barrett  r.  R.  R. 
Co.,  45  N.  \\  628;  McMalion  r.  David- 
son, 12  Minn.  357.  Some  exceptions 
to  the  general  rule  are  to  be  found  in 
the  Ijooks.  Thus  where  dogs  of  several 
owners  commit  a  trespass,  each  owner 
is  not  liable  for  the  whole  damage, 
but  ouly  for  what  his  own  dog  did. 
110 


See  Division  III.,  Title  Animals,  ante. 
"Another  exception,"  says  Judge 
Thompson  (Thompson  on  Negligence, 
1088),  "exists  in  England  and  in  some 
American  courts,  in  cases  where  the 
relation  of  the  person  injured  to  one 
of  the  parties  doing  the  injury  is  such 
that  they  are  deemed  to  bo  identified, 
in  a  juridical  sense,  with  each  other; 
as  where  tlio  goods  of  A  on  board, 
the  vessel  of  B,  A's  carrier,  are  lost  by 
reason  of  a  collision  between  the  ves- 
sel of  B  a:.d  the  vessel  of  C,  the  pilots 
of  both  vessels  being  negligent;  or 
where  A,  a  passenger  on  board  B'a 
train  of  cars,  is  injured  by  B's  train 
coming  in  contact  with  the  train  of  C, 
the  servants  of  both  companies  being 
negligent.  Here  A  may  recover  dam- 
ages of  B,  but  not  of  C.  Nor  does 
tins  doctrine  apply  in  case  of  actions 
for  damages,  under  the  statutes  of 
Massachusetts,  for  injuries  sustained 
by  travelers  in  consequence  of  negli- 
gence of  town^  in  Hufifering  their  high- 
ways to  get  out  of  repair  ':  Shepherd 
V.  Chelsea,  4  Allen,  113. 

=<  Pasteno  v.  Adams,  49  Cal.  87. 

^  Thompson  on  Negligence,  1093; 
Welch  V.  Wesson,  G  Gray,  505.  But 
aliter,  in  some  of  the  New  England 
states,  as  to  Sunday  traveling:  See 
Divisieu  HI.,  Coutracta— Suuday, 


1029 


PERSONAL    WRONGS. 


1746 


iLLrsTRATTONS.  —  A  horso  took  fright  fromtho  carriage  ptrik- 
ing  an  obstruction  in  a  way,  and  l)ecamo  unmanagcablo,  and 
ran  away,  injuring  the  driver.  Ilrhl,  that  tiio  obstruction  was 
the  proxin)ato  cause  of  the  injury:  Clnrk  v.  Lchanon,  03  Mo. 
393.  A  man  in  a  balloon  landed  in  private  grounds,  attracting 
thereon  a  crowd  of  people,  who  trampled  and  destroyed  the 
flowers  and  })lants.  Held,  that  ho  was  liable  for  the  damage: 
GuiUc  \ .  Swan,  19  Johns.  381;  10  Am.  Dec.  234.  A  negligi'utly 
leaves!  lis  horse  unhitched  in  a  crowded  street.  The  horse  runs 
away,  and,  while  going  violently  down  the  street,  people  run  to- 
wards i  r.  endeavoring  to  stop  it.  This  causes  the  horse  to  swerve 
from  tl'c  course  it  is  taking,  and  brings  it  into  contact  with  tho 
horse  .'ind  sleigh  of  B,  causing  damage  to  B.  Ilcld^  A  is 
answer  iMe  for  the  damage  which  B  has  thus  sustained:  Origga 
V.  Fieri.'  II  stein,  liUinn.  81;  100  Am.  Dec.  199.  A,  a  dealer 
in  lumber,  negligently  piled  some  timbers  on  each  other  near  a 
passag«-way.  A  wheel  of  tho  wagon  of  B,  a  customer,  casually 
caught  iu  a  timber  projecting  from  the  pile,  and  tlirew  the 
whole  .structure  down  upon  C,  another  customer.  The  timbers 
had  bon  thus  piled  several  months  before  tho  accident.  Held, 
that  tb"  negligence  of  A  was  tho  proximate  cause  of  the  injury 
to  C:  PdHtcne  v.  Adams,  49  Cal.  87.  Iloisting-shcars  were  held 
in  position  by  two  guys.  A  stevedore  cast  the  front  guy  loose, 
and  diii  not  refasten  it.  The  next  day,  some  boys  swimg  on 
the  rear  guy,  and  caused  the  shears  to  fall  and  break.  They 
would  not  have  fallen  but  for  tho  swinging  of  the  boys,  and  the 
Bwinginii  of  the  boys  would  not  have  caused  them  to  full  had 
the  stcvi'doro  refastened  the  front  guy.  7/ck?,  that  the  stevedore 
was  not  liable  for  the  injury  to  the  shears  caused  by  the  fall; 
Tutein  V.  Hurley,  98  Mass.  211;  93  Am.  Dec.  154.  A  negli- 
gently piled  boards  on  tho  traveled  part  oi  a  highway.  B, 
driving  along,  ran  over  the  boards,  and  the  contents  of  his 
wagon  produced  a  rattling  noise,  which  frightened  C's  l^orse, 
causing  him  to  jump,  and  threw  C  out  of  his  wagon.  Tho 
horso  was  a  well-broken  horse  and  well  driven.  In  an  action 
by  C  figainst  A,  held,  that  a  nonsuit  was  improper:  Lake  ". 
Mill'drn,  G2  Me.  240;  16  Am.  Rep.  456.  The  defendant  put  a 
dangerous  spiked  hurdle  in  a  private  road  over  which  he  and 
other.":  had  rights  of  way.  Some  person,  without  the  knowl- 
edge of  the  defendant,  moved  the  hurdle  a  few  yards.  On  a 
dark  night,  tho  plaintiflF,  who  was  not  a  trespasser,  without 
negligence,  and  thinking  to  avoid  the  original  position  of  the 
hurdle,  came  into  collision  with  it,  and  was  injured.  Held,  that 
the  plaintiff  could  recover  from  the  defendant:  Clark  v. 
Chambers,  L.  B.  3  Q.  B.  D.  327.  A  sign,  hung  over  a  street 
in  a  city,  with  due  care  as  to  its  construction  and  fastenings, 
but  in  violation  of  a  city  ordinance  which  subjected  its  owner 


ni 


tatini 
whosl 
the  \i 
is  dr(J 
pay  { 
15  1. 
ill  po 
iccui 
lis  gc 
I'as  c, 
f  thl 
■lioJc 
fi'igJitJ 
driverl 
street. 


i     p^y  c 

1  ill  po 
■       accui 

■  liis  gc 
B  ivas  c 
1  of  th 
i       v.-hoJc 

L746 


1747 


TORTS   IN   GENERAL. 


§  1020 


strik- 

,  and 

I  was 

;j  Me. 

icting 

I    the 

nmge: 

gi'utly 

e  runs 

run  to- 

Hworve 

ith  the 

,  A  is 
Grigga 

I  dealer 

•  near  a 

;asually 

row   the 

timbers 

.    Held, 

ic  injury 

icrc  held 

uy  loose, 

ivnmg  on 

i.  They 
and  the 
full  had 

stevedore 
the  fall: 
A  negli- 

iwav.    B, 
;s  of  his 
s  }iorse, 
on.     The 
an  action 
Lake  ". 
mt  put  a 
he  and 
le  knowl- 
ds.     On  a 
^v'ithout 
,on  of  the 
IlchU  that 
Clark  V. 
a   street 
"astenings, 
its  owner 


to  a  penalty  for  placing  and  keeping  it  there,  was  blown  down 
by  the  wind  in  an  extraordinary  gale,  and,  in  its  fall,  a  bolt 
which  was  part  of  its  fastenings  struck  and  broke  a  window  in 
a  neighboring  building.  //t7(f^  that  the  owner  of  the  sign  was 
liable  for  the  injury  to  the  window:  Snihhvnj  v.  Hcrrhvin'odcr, 
10()  IMass.  458;  8  Am.  Rep.  354.  The  defendant  had,  contrary 
to  the  provisions  of  the  police  act,  washed  a  van  in  the  streol, 
and  suffered  the  water  used  for  the  purpose  to  flow  down  a 
gutter  towards  a  sewer  at  some  little  distance.  The  weather 
being  frosty,  a  grating  throupb  which  the  water  flowing  down 
the   gutter  pasp  ^  *'     sewer  had  become  frozen  over,  in 

consequence   of  v.^jicr         .vater  sent  down  by  the  defendant, 
instead  of  passing  into  tne   sewer,  spread   over  the  street  and 
had  been  frozen,  rendering  the  street  slippery.     The  plaintiff's 
horse   coming   along   fell   in    consequence,   and   was   injured. 
Held,  that,  as  there  was  nothing  to  show  that  the   defendant 
was   aware   of    the    obstruction   of    the   grating,    and   as   the 
stoppage  of   the  water  was  not  the  necessary  or  probable  con- 
sequence of  the  defendant's  act,  he  was  not  responsible  for  what 
had  happened:  Sharp  v.  Powcll^h.  R.  7  Com.  P.  253.     Through 
the  negligence  of  a  gas  company,  a  leakage  of  gas  occurs  in  the 
cellar  of  A,  a  consumer.     At  the  request  of  A,  B,  a  gas-fitter, 
sends  his  servant  to  examine  and    repair   the   leak.     Through 
the  negligence  of  B's  servant,  the  gas  which   has  thus  escaped 
in  A's  cellar  explodes,  doing  damage  to  A.     The  gas  company 
must  answer  to  A  for  this  damage:    Bumms  v.  Gas  Co.,  L.  R. 
5  Ex.  67;  L.  P.  7  Ex.  96.     A  leaves  his   horse  and   cart  stand- 
ing in   the   street,   without   any   person  to  watch  them,  and  a 
passer-by  strikes  the  horse,  in  consequence  of  which  damage 
ensues.     Held,  that  A  is  answerable   for   such  damage:   lUidgc 
V.  Goodwin,  5  Car.  &  P.  190.     An   omnibus  overturns,  precipi- 
tating a  passenger  into  the  lock  of  a  canal.     A  third  person,  for 
whose  acts  the  proprietor  of  the  omnibus  is  not  responsible,  lets 
the  water  into  the  canal,  in  consequence  of  which  the  passenger 
is  drowned.     Held,  that  the   proprietor  of  the   omnibus   must 
pay  damages  for  the  death  of  the  passenger:  Byrne  v.  Wilson, 
15  I.  C.  L.  R.  332.     Two  independent  contractors  wore  negligent 
in  performing  their  respective  portions  of  the  work,  so  that  an 
accumulation  of  water  entered  the  plaintiff's  cellar,  daniaging 
his  goods.     It  could  not  be  ascertained  how  much  of  the  water 
was  caused  to  flow  by  the  negligence  of  each  contractor.     One 
of  them  was   sued.     Held,   that    he  was  held  hable  for    the 
whole   damage:    Slater  v.  Mcrscreau,  64  N.  Y.  138.    A  horse  is 
frightened  by  a  moving  street-car,  and  runs  away,   and  the 
driver  is  injured  by  collision  with  a  dangerous  obstruction  in  the 
street.    Held,  that  the  obstruction  is  the  proximate  cause: 


1030 


PERSONAL    WRONGS. 


1748 


rnmphfU  V.  StUhrairr,  "^2  ^linn.  HOS;  50  Am.  R.'p.  567.  A  per- 
Hoii  is  Ity  contract  entitled  to  all  the  articles  to  b(!  iimnufactured 
by  a  Certain  cotupany,  lie  furnisliin^  the  raw  materials.  Jlcld, 
that  he  cannot  maintain  an  action  against  a  trcspaHSer  who 
stops  the  machijiery  of  th"  company,  and  obstructs  it  in  per- 
forming the  contraet:  D'llr  v.  fh-nnf,  .'>4  N.  J.  L.  142.  A  directs 
his  agent  to  ('re<'t  a  building  for  him  on  a  certain  spot.  B, 
by  false  representations  regarding  the  boundary  line,  induces 
the  agent  in  the  owner's  alwnco  to  begin  work  elsewhere.  A 
lias  no  r(Mnedy  against  H:  Sllrcr  v.  Frnzicr,  li  Allen,  3S2;  81 
Am.  Dec.  ('»()2.  A  bridge  having  l)ecome  impaHsabl<!,  one  who 
desired  to  carry  wood  across  j)iled  it  on  the  lev(!e  to  await 
opportunity.  A  Hood  ctarried  it  of!'.  kSuit  was  brought  for  tho 
loss,  as  being  occasioned  by  the  non-repair  of  the  bridge. 
//<"/'/,  too  remote:  DvJinqnr  \Vo(ul  etc.  AtiHwiaivm  v.  Dubuque, 
80  Iowa,  17().  Defendant  corporation  hiid  an  eight-inch  gas 
main  on  the  bed  of  a  navigable  river,  instead  of  under  it.  A 
steamboat  groutided  lier  bow  on  a  small  hidden  lump  on  tho 
river-bi'd,  and  was  suiuig  rountl  till  she  stuck  fast  on  the  gas- 
pipe.  In  trying  to  pull  her  otf  by  warping,  the  gas-pipe  broke, 
and  the  boat  was  burned,  and  libelants  injured.  Held,  that 
the  injuries  were  caused  proximately  by  defendant's  wrongful 
act:  Omdner  v.  PJiUaddpltia  Co.,  81  Fed.  Rep.  354.  Fire  was 
negligently  allowed  to  fall  from  a  locomotive  on  defendant's 
elevatiid  railroad  upon  a  liorse  attached  to  a  wagon  in  the  street 
below,  and  upon  the  liand  of  the  driver.  The  horse  wa.s 
fri;;;htencd,  and  ran  away.  Th»!  driver  attempting  to  drive  him 
against  the  curbstone  to  stop  him,  the  wagon  passed  over  the 
curbstone  and  injured  plaintilT,  who  was  on  the  sidewalk. 
Ilrld,  that  he  miglit  recover  therefor:  Lowcry  v.  11.  R.  Co.,  90 
N.  Y.  1.58;  52  Am.  Rep.  12.  The  defendant  unlawfully  ob- 
structed a  street  by  a  train  of  cars.  The  plaintiff,  desiring  to 
pass,  walked  around  the  rear  of  the  train,  entered  another  street, 
obstructed  by  ice  placed  there  ])y  the  defendant  in  clearing  its 
track,  which  was  laid  also  in  tliat  street,  fell  upon  tUe  ice,  and 
was  injured.  Th(>re  were  other  available  routes  to  her  destina- 
tion. IFcld,  that  the  injury  was  th(!  proximate  result  of  the  ice: 
Railway  Co.  v.  Staley,  41  Ohio  St.  118;  52  Am.  Rei    74. 

§  1030.    Not  Liable  for  Remote  or  U.        jcted  Dam^  'e. 

—  If  Die  ^vrong  and  the  resulting  dama  are  not  known 
by  common  experience  to  be  naturally  and  ui-  lally  in  se- 
quence, and  th(3  damage  does  not,  according  to  the  ordi- 
nary course  of  events,  follow  from  the  wrong,  then  the 


J I  on 

of 

Paw, 

of 


K.rr. 
Mc(Ji 
ScoLt 
Am. 
.Ml'. 
Laiic; 
K.  R. 
1 ")  Ai 
tn,  4 

'!•'• 
•Am!  J 
7ii  N. 


1748 


1749 


TORTS   IN   GENERAL. 


1030 


A  por- 

^tured 

JIdd, 

r  who 

n  pcr- 

Urccts 

.t.     B, 

nduces 

■re-.     A 

;h2;  hi 

no  who 

await 

for  tho 

hrklg»\ 

ich   gafl 
r  it.     A 
p  on  tho 
the  {?as- 
(0  broke, 
;/(/,   tliat 
.vrongful 
Fire  was 
'cndant's 
he  Btreet 
or  so  was 
rive  him 

over  the 
adownlk. 
t.  Co.,  99 
rfully  ob- 
isiring  to 
icr  street, 
taring  its 
»  ice,  and 
r  (lesli na- 
if the  ice: 

L 

Dam'^  '6. 

t  known 

Uy  in  so- 

the  ordi- 

tlieu  the 


wrong  and  tho  damage  nro  not  sufBciontly  conjoined  as 
cause  and  ofibct  to  support  an  action.' 

iLLUsTiiATroNS.  —  Common  carriers  undertook  to  transport 
goods  from  Philadelphia  to  Pittsburgh  by  canal.  While  on 
their  way,  the  goods  were  destroyed  by  an  extraordinary  (lood. 
Tlie  goods  would  not  have  been  at  tho  place  of  injury  but  for 
their  having  been  delayed  by  tiie  lameness  of  a  horse  attached 
to  th(!  boat.  Held,  that  the  culpability  of  the  defendants  in 
allowing  tho  boat  to  be  delayed  by  the  lameness  of  the  liorso 
was  not  tho  proximate  cause  of  the  loss:  Morrimn  v.  I)<irin,  20 
Pa.  St.  171;  57  Am.  Dec.  G95.  A  railroad  train  running  be- 
liind  time  was  upset  by  a  gale  of  wind,  and  tho  plaintlll"  was 
injured.  Had  tho  train  boon  on  timo  the  gust  would  not  liavo 
reaeiied'it.  Held,  that  the  injury  could  not  be  attributed  to 
tho  delay  as  tho  proximate  cause,  and  the  railroad  company 
was  not  liable:  McClary  v.  /?.  11.  Co.,  3  Neb.  44;  19  Am.  Uep. 
0^51.  A  man  mounts  a  pile  of  flag-stones  in  a  public  street  to 
make  a  speech.  A  crowd  of  hearers  gather  about  him,  some  of 
whom  also  get  on  tho  stones,  and  break  them.  ITcId,  that  the 
speaker  was  not,  as  matter  of  law,  liable  for  the  damages;  but 
whether  his  conduct  was  tho  proximate  cause  of  tho  damage 
was  a  question  for  the  jury:  Fairbanks  v.  Kerr,  70  Pa.  St.  8G; 
10  Am.  Rep.  064.  A  water-works  company  stops  up  a  public 
foot-way,  so  that  persons  having  occasion  to  pass  that  way  tres- 
pass upon  the  land  of  B,  and  beat  down  his  herjjago.  IDId, 
tluit  1>  has  no  cause  of  action  against  the  company:  Blafjrave 
v.  ir<^(^fr  Worl's  Co.,  1  Hurl.  &  N.  oGO.  A  person  negligently 
siifiers  his  fence  to  get  out  of  repair,  whereby  his  neighbor's 
horse  escapes  into  his  close,  and  is  there  killed  by  the  aceidt'nt 
of  a  hay-stack  falhng  upon  him.  Held,  that  ho  is  liable: 
Powdl  V.  Salisbury,  2  Younge  &  J.  891.  A  goes  to  the  house  of 
r>,  a  neighbor,  at  nightfall,  and  quarrels  with  B  on  the  porch 
of  B's  house,  using  violent,  threatening,  and  abusive  language. 


'  Addison  on  Torts,  G;  Rif^by  v. 
Hewit.',  5  Ex.  240;  Fairbanks  v. 
K.ii'.  70  Pa.  St.  80;  10  Am.  Rep.  004; 
]\lc(h'ow  V.  Stone,  5:i  Pa.  St.  430; 
Scott  r.  Hunter,  40  Pa.  St.  192;  84 
Am.  Dee.  542;  Lake  v.  Milliken,  02 
Me.  210;  10  Am.  Rep.  450;  Stark  v. 
Laiiciioter,  57  N.  il.  88;  Atchison  etc. 
R.  K.  Co.  V.  Stanford,  12  Kan.  .354; 
15  Am.  Rep.  302;  Marble  v.  Worces- 
tiT,  4  Gray,  3U5;  Bennett  v.  Lock- 
wood,  20  Wend.  223;  32  Am.  Dec. 
'•-';  Proctor  r.  Jennings,  G  Nov.  83;  3 
Mil.  Rep.  240;  Doggett  r.  R.  R.  Co., 
la  N.  C.  30o;  State  v.  R.  R.  Co.,  52 


N.  H.  528;  Phillips  r.  Dickcrsoii,  85 
111.  11;  28  Am.  Rep.  007;  Morrison  /-. 
Davis,  20  Pa.  St.  171;  57  Am.  Dec. 
095;  the  court  saying:  "  A  black- 
smith pricks  a  horse  by  careless 
shoeing.  Ordinary  foresight  might 
anticipate  lameness,  and  some  days  <,r 
weeks  of  unfitness  for  use;  l)ut  it 
could  not  anticipate  that  by  rea^■ou  of 
the  lameness  the  horse  would  be  tle- 
layeil  in  passing  through  a  forest  until 
a  tree  fell  and  killed  him  or  injui-ed 
his  rider;  and  such  injury  would  bo 
no  proper  measure  of  the  blacksmith 'a 
liability." 


1030 


PERSONAL   WRONGS. 


1750 


In  consequence  of  this,  B's  wife,  abed  in  the  house,  becomes  bo 
frightened  that  she  gives  premature  birth  to  a  child.     Held, 
that  A  is  not  liable  to  B  for  tliis,  as  it  is  not  a  natural  and  prob- 
able consequence  of  his  violent  conduct:  Phillips  v.  Dickcrson, 
85  111.  11;  28  Am.  Rep.  GOT.     Plaintiff  owned  houses  which 
were  separated  from  a  river  by  a  street  only.     Defendnnt,  a 
railroad  company,  filled  up  a  part  of  the  river  in  front  of  those 
houses,  and  occupied  the  same  and  a  part  of  the  street  mth 
tracks  and  buildings.     Plaintiff's  houses  took  fire  and  were  de- 
stroyed, because  the  firemen  were  unable  to  reach  and  procure 
wat(;r  from  the  river  by  reason  of  such  obstructions  caused  by 
defendant.     Held,  that  defendant's  acts  were  not  the  proximate 
cause  of  plaintiff's   loss,   and   that  defendant  was  not  liable 
even   though   his  acts   were   unlawful:    Bosch    v.   R.   R.    Co., 
44  Iowa,  402;  24  Am.  Rep.  754.     The  defendant  was  in  pos- 
session of  a  partially  inclosed  piece  of  public  land,  on  which 
he   was   pasturing   his  cattle.     The  plaintiff  drove  his  cattle 
through  defendant's  inclosure  onto  the  same  land  for  tho  pur- 
pose of  pasturage,  from  which  thoy  were  driven  by  defonchint. 
They  afterwards  roamed  on  land  claimed  by  one  G,  who  gavo 
notice  to  plaintiff  to  come  and  take  them,  which  he  neglected 
to  do,  and  many  of  them  died  from  starvation.     Held,  th  il  tho 
loss  of  the  cattle  was  not  tho  proximate  result  of  the  defendant's 
trespass:     Story  v.  Robinson,  32  Cal.  205.     Defendant  sold  gun- 
powder to  a  boy  eight  years  old,  who,  in  the  absence  of  his 
parents,  took  it  home,  and  placed  it  in  a  cupboard.    Afterwards, 
with  the  knowledge  and  consent  of  his  mother,  he  fired  some  of 
it  off;  a  few  days  later  he  did  so  again,  and  was  injured  by  the 
explosion.     Held,  that  the  injury  was  not  the  proximate  result 
of  the  sale  of  the  powder:  Carter  v.  Towne,  103  Mass.    507. 
Tho  defendant's  bartender  sold  liquor  to  B,  and  an  altercation 
ensuing,  threw  a  glass  at  B,  wliich  missed  him   and    injured 
plaintiff.     Held,  that  tf.c  injurj'  was  not   the  proximate  con- 
sequence  of  the   sale   of  tho  liquor:   Luehn  v.  People,  3  111. 
App.  27.    By  the  collision  of  trainc  in  Virginia,  a  passenger  was 
so  injured  that  he  became  insane,  and  eight  months  after  tlio 
accident,  committed  suicide.     Held,  that  his  own  act  was  the 
proximate  cause  of  his  death,  and  that  the  company  was  there- 
fore not  liable:  Scheffery.R.  R.  Co.,  105  U.  S.  249.  P.  fastened  his 
horse  with  a  stout  rope  by  the  side  of  a  public  street;  a  steam- 
whistle  upon  tho  top  of  U.'s  factory,  about  fifteen  rods  distant, 
was  blown  as  a  notice  to  tho  operatives,  producing  a  sound  shrill 
and  calculated  to  frighten  ordinary  horses.     The  horse  pulled 
violently  at  his  rope,  which  gave  way,  and  ho  was  killed.  It  was 
found  that  if  the  whistle  had  not  been  sounded,  the  horse  would 
not  have  pulled;  and  thatif  thehorsehad  been  free  from  the  habit 
of  pulling,  he  would  not  have  been  killed.    Held,  that  the  death 


R( 

Wli 


ofk 


1750 


1751 


TORTS   IN   GENERAL. 


§  1030 


oes  so 

Held, 

[  prob- 

[crson, 

which 

lonti  a 

'  these 

t  vnih. 

crc  dc- 

)rocure 

sed  by 

ximute 

,  liable 

R.    Co., 

in  pos- 

1  which 

e  cattlo 

ho  pur- 

"endant. 

ho  gav(> 

egiccted 

thit  the 

cndant'a 

old  gun- 

e  of  his 

lerwards, 
some  of 

d  by  the 

;o  result 

iss.    507. 

tore  at  ion 
injured 

uito  con- 
ic,  a  111. 
ngcr  was 
after  the 
was  the 
as  thero- 
Lened  his 
a  steam- 
distant, 
aid  shrill 
50  pulled 
d.  It  was 
rse  would 
tho  habit 
the  death 


of  tho  horse  could  not  be  regarded  as  caused  by  the  negligence 
of  U.,  and  that  he  was  not  liable:  Parl-er  v.  Woolen  Co.,  42  Conn. 
399.  A  passenger,  on  leaving  a  train  at  night  which  had 
stopped  a  short  distance  beyond  tho  station,  was  mii^informed 
as  to  its  position  by  the  conductor.  Instead  of  going  back,  he 
went  on,  being  familiar  with  the  neighborhood,  and  intending, 
by  crossing  a  cattle-guard,  to  come  upon  a  cross-road;  but  find- 
ing that  he  was  beyond  the  road,  turned  back  to  reach  it  by 
crossing  a  similar  cattle-guard  on  that  side,  into  which  ho  fell 
and  was  injured.  Held,  that  the  defendant's  negligence  was 
not  the  proximate  cause  of  the  injury:  Lewis  v.  K.  R.  Co.,  54 
Mich.  5o;  52  Am.  Rep.  790.  A  train  wrongfully  obstructed  a 
street  crossing;  animals  were  thus  prevented  from  crossing,  and 
while  they  stood  waiting  on  the  other  track,  another  tmin  came 
along  and  injured  them.  Held,  the  obstruction  as  not  the 
proximate  cause  of  the  injury:  Brown  v.  R.  R.  Co.,  '10  IMo.  App. 
222.  A  bridge  erected  over  a  slough  of  the  Mississippi  River, 
and  as  a  part  of  the  highway  from  the  business  part  of  the 
city  of  Dubuque  to  a  levee  on  that  river,  became  impassable 
for  want  of  repairs,  by  reason  of  which  the  plaintiff  was  unable 
to  transport  over  it  a  lot  of  wood  which  had  been  collected  at 
the  levoe,  for  that  purpose,  and  the  same  was,  while  lyii)g  there 
under  these  circumstances,  washed  away  by  a  freshet.  Held, 
that  the  damages  were  too  remote:  Dubuque  Wood  etc.  Ass'n  v. 
Dubuque,  30  Iowa,  17G.  The  defendant  left  a  train  of  cars 
standing  entirely  across  a  highway  crossing  near  its  station, 
and  the  plaintiff,  desiring  to  reach  the  station,  undertook  to 
drive  with  a  horse  and  cart  at  a  point  where  there  was  no  eross- 
iug  and  the  track  was  raised  above  the  ground,  and  ho  was 
thrown  off  by  the  jostling  of  the  cart,  and  injured.  Held, 
that  the  injury  was  not  the  proximate  result  of  the  defend- 
ant's conduct:  Jaclsnu  v.  R.  R.  Co.,  13  Lea,  491;  49  Am. 
Rep.  G().3.  A  sleigh  was,  overturned  by  an  ash-heap  in  ;i  high- 
way, and  tho  horses  att;  ched  ran  away,  and  about  livj  or  six 
miles  distant,  and  a  mile  from  any  highway,  they  were  hilled  by 
a  railroad-locomotive.  Held,  that  the  negligence  of  the  town- 
shin,  if  any,  was  not  tho  proximate  cause:  Township  <(  Went 
Mahanoy  v.  T^o^^•o»,  112  Pa.  St.  574;  5G  Am.  Rep.  .'5;]G.  \  well- 
broken  horse,  while  being  carefully  driven,  suddenly  shied  at  a 
bird  in  the  bushes,  and  jumi)ed  several  feet  from  the  usually 
traveled  portion  of  a  bridge,  and  broke  through  a  defeetive  part. 
//(■/(/,  that  tho  shying  was  not  the  i)roximato  cause  of  the  injury, 
and  the  town  was  liable:  Aldrlrh  v.  Gorham,  77  ]\Ie.  2.S7.  C. 
shot  and  killed  a  dog  on  tho  higliway  near  the  liouso  of  R., 
whose  wife,  unknown  to  C,  was  near  by,  and,  IxMQg  in  d(  licato 
health,  was  so  frightened  that  she  fell  sick.  Held,  that  tho  act 
of  killing  the  dog  was  not  the  proximate  cause  of  the  injury  to 


§  1031 


PERSONAL   WRONGS. 


1752 


the  wife  of  R. :  Renner  v.  Camficld,  36  INIinn.  90.  Defendant  pro- 
cured from  plaintiff' a  letter  introducing  D.  to  plaintiff"s  agent 
in  Central  America,  defeadant  represonting  that  D.  was  going 
there  on  a  pleasure  trip,  when,  in  fact,  D.  and  the  defendant 
were  engaged  in  an  expedition  hostile  to  the  government  of  that 
country.  By  reason  of  D.'s  conduct,  pluintiff''s  property  in  (\>n- 
tral  America  was  seized  and  held  for  a  time  by  United  States 
vessels.  Held,  that  plaintiff''s  losses  were  not  the  proxiujate 
result  of  defendant's  conduct  toward  plaintiff':  Jcx  v.  Stniuss,  55 
N.  Y.  Sup.  Ct.  52. 


§  1031.  In  the  Case  of  Fires.  —  The  same  principles 
apply  in  the  case  of  a  fire  spreading;  the  person  or  cor- 
poration negligently  starting  it  is  liable  for  all  the  damage 
it  does  in  its  travel  provided  no  unexpected  and  unusual 
agency  intervenes.*     Where  a  fire  originates  in  the  care- 


'  Atcbison  etc.  R.  R.  Co.  r.  Bales, 
IG  Ka:i.  12.J2;  AtcLisou  etc.  R.  R.  Co. 
%-.  iStauforJ,  12  Kan.  354;  15  Am.  Doc. 
3G-2;  St.  Joseph  etc.  R.  It.  Co.  v. 
Chase,  11  Kan.  47;  Baltimore  etc.  R. 
R.  Co.  c.  .Shii.ley,  ."^O  I\I.l.  'Jol ;  Dog- 
gett  V.  R.  R.  Co.,  7SN.  C.  305;  Toledo 
etc.  R.  R.  Co.  V.  Pindar,  ClUll.  447;  5 
Am.  Rep.  57;  Kellogg  v.  R.  R.  Co.,  20 
Wis.  223;  7  Am.  Rep.  GJ.  Two  eases 
lioldi.'.ig  a  contrary  rule  (Pennsylvania 
etc.  R.  R.  Co.  V.  Kerr,  G2  Pa.  St.  353; 
1  Am.  Rep.  431;  and  Ryan?-.  R.  R. 
Co.,  35  N.  y.  210;  91  Am.  Dec.  50)  arc 
opposed  to  all  the  other  authorities  on 
tLis  subject.  AndsecReiper  ?".  Nieli- 
ol.i,  .'M  Ilun,  491;  Pennsylvania  Co.  v. 
Whitlock,  99  Ind.  IG;  50  Am.  Rep.  71; 
'ioledo  etc.  R.  R.  Co.  v.  Mailiers- 
burg,  71  111.  572.  The  Kerr  and  Ryan 
case  i  ai-L!  criticised  with  great  force  by 
Lawrrnee,  C.  J.,  in  Fent  r.  R.  R.  Co., 
59  111  319;  14  Am.  Rep.  13.  IE  these 
two  decisions,  says  tiio  chief  justice, 
"  are  correct  law,  it  must  be  held  that 
if  lire  is  communicated  from  the  loco- 
motive to  the  Held  of  A,  and  .spreads 
through  his  held  to  tlie  adjoining  field 
of  15,  wiiile  A  must  be  reimbursed  by 
the  company,  IJ  nmst  set  his  loss  down 
as  dui;  to  a  remote  cause,  and  sufier  in 
■uncomplaining  silence.  Would  tiiero 
not  bo,  in  such  a  decision,  a  sense  of 
palpible  wrong,  which  would  justly 
shock  the  public  conscience,  and  im- 
pair the  'jonlideucc  of  the  community 


in  the  administration  of  tlie  law  ? 
While  the  law  to  bo  administered  I)y 
tho  courts  .shoulil  ui>t  be  a  mere  reflex 
of  uneducated  public  opinion,  at  the 
same  time  it  should  bo  tho  e.vprcssioa 
of  a  masculine  common  sense,  a:ul  its 
decisions  should  not  bo  founded  on 
distinctions  so  subtilo  that  they  might 
have  aflforded  fitting  to})ics  to  tho 
school-men.  If  the  field  of  A  contains 
forty  acres,  and  the  whole  is  overrun 
by  lire,  he  may  recover  for  tho  whole. 
But  if  A  owns  twenty  acres  next  to 
the  railway,  and  B  tho  remaining 
twenty  acres  of  the  same  Held,  A  shall 
recover,  according  to  the  doctrine  of 
these  cases,  but  B  shall  not.  Yet  the 
test  (piestion  is,  What  is  the  proximate 
cause  of  the  lire  ?  and  this  ruling  makes 
the  proximate  caujc  depend  upon 
wiiether  the  field  of  forty  acres  is 
owned  by  one  person  or  by  two.  Let 
lis  suppose  another  case.  Botli  these 
opinions  upon  which  we  are  comment- 
ing expressly  admit,  as  both  courts 
have  decided,  that  if,  throngli  the 
negligence  of  a  railway  company,  fire 
is  comiimnicated  to  tlie  building  of  A, 
Irj  may  recover.  But  suppose  tho 
building  is  a  wooden  tene.neut  one 
huudreil  feet  in  length  extending  from 
tho  railway.  In  tlie  Penns^  Ivania 
case,  the  second  building  was  only 
thirty-nine  feet  from  the  first.  Wo 
presume  that  court  woukl  hold,  and 
appellee'a  couuael  would  admit,  that 


1752. 

\t  pro- 
agent 
going 
;ml;int 
)f  that 
n  Cvn- 
States 
*:iuuite 
uss,  55 


iciple3 
or  cor- 
am age 
u  usual 
0  caro- 

thc   law? 
stercd  by 
luro  reflex 
lu,  at  the 
jxpression 
;o,  a:ul  its 
lllduil     ou 
hey  might 
!s    to  the 
^  contains 
id  ovorruu. 
ho  whole. 
;3  no:ct  to 
rcuiaiuing 
a,  A  shall 
och'ino  of 
Yet  the 
proximate 
ag  makes 
nd    upon 
acres   is 
two.     Let 
lotli  these 
commout- 
th  courts 
)ngh    the 
ipauy,  lire 
lin^;  of  A, 
iposo   the 
neat  f'Ue 
din:;  from 
1US3  Ivania 
Wlis    only 
Irst.     We 
hold,  and 
limit,  that 


1753 


TORTS   IN   GENERAL. 


§  1031 


lessncss  of  a  defendant,  and  is  carried  dir  ■  tly  by  a  ma- 
terial force,  whether  it  be  the  wind,  the  Liw  of  gravita- 
tion, combustible  matter  existing  in  a  state  of  nature,  or 
a  running  stream,  to  the  plaintiff's  property,  and  destroys 
it,  the  defendant  is  legally  answerable  for  tho  loss/ 

Where  fire  is  negligently  started,  and  is  not  imme- 
diately communicated  to  the  property  dcstrojxnl,  but  is 
communicated  from  one  building  to  anolher  until  it 
reaches  tiio  property  destroyed,  causal  connection  will 
only  cease  when  between  the  negligence  and  the  damage 
an  object  is  interposed  which  would  have  prevented  the 
damage  if  duo  care  had  been  taken.^  An  act  of  negli- 
gence, whereby  a  lire  was  set  which  spread  to  plaintiff's 


A  miglit  recover  for  the  value  of  liis 
entire  building,  one  hundred  feet  in 
lengi-h.  But  suppose  IJ  owns  tho  most 
remote  lifty  fee>;to  the  buikliug,  cc.ikl 
he  recover  ?  Wo  uuppose  not,  under 
the  rulo  auumnced  in  these  cases.  But 
wliy  rt'aoidd  !io  not, under  any  definition 
of  proxauaiie  c:ra.-ie  tliat  has  ever  been 
given  by  any  court  or  text-writer? 
Take  that  of  Greenleaf,  with  which 
counsel  for  appellee  claim  to  be  con- 
tent. Hi!  .say3  tho  damage  must  bo 
'the  natural  and  proximate  conse- 
quence of  the  act  complained  of.'  Is 
not  tlic  burning  of  the  second  fifty 
feet  of  t'lo  building,  iu  the  case  sup- 
posed, the  natural  and  proximate  con- 
scfpieuce  of  tiie  act  compLiined  of,  to 
wit,  tiio  careless  ignition  of  the  first 
fifty  feet  ?  If  itis  admitted  tb.  t  there 
miy  be  a  recovery  for  the  seci  'S'l  fifty 
feet  of  tlie  building,  as  well  as  for  the 
first,  when  there  is  one  continuous 
building,  and  whether  owned  by  one 
person  or  by  two,  is  it  possible  that 
when  tlie  second  lifty  feet  is  removed 
a  short  space  from  the  first,  but  still  is 
so  near  vnat  tho  burning  of  the  one 
makes  almost  certain  the  destructioa 
of  the  otlier,  there  can  be  no  recovery  ? 
Is  not  the  burning  of  the  second  build- 
ing still  'the  natural  and  proximate 
conse(|U(:nee  of  the  act  complained 
of '  ?  It  seems  to  us  tiuit  the  arbitrary 
rule  en  orccd  iu  tiiesetwo  oases,  which 
is  siiii[>ly  this,  that  when  there  is  neg- 
ligence, there   may  be  a  recovery  for 


the  first  house  or  Held,  butinnoevenl; 
for  tho  Kccond,  n  s's  on  no  mainlain- 
able    ground,  and  \.'ould  involve  the 


llie  law  in  cases 
i  abuird  inconsis- 
•o  there  is  no  oUier 
i'l'.le  than  to  deter- 
'.a.ie.i  whcLlier  tho 
might  reasonably 
t.  d  Irom  the  care- 
Ih'e,   uniler  all  the 


administration  of 
of  thij  character 
tencies.  Wo  belie 
just  or  rea:;(maM ) 
mine  iu  every  in 
loss  was  one  wliie 
have  been  antiei; 
less  setting  of  tlie 
circumstances  siirr.;ii.:diu  ;  tlio  careless 
act  at  the  timeo:  ii  ,  [lerfor.uanee.  If 
loss  his  been  cau-  ■!  Vy  the  act,  and  it 
was,  under  the  eiiea.n^tanees,  .a  nat- 
ural consequeuc;  winch  any  reason- 
able person  coul  I  h  ivo  anticipated, 
then  the  act  is  a  [n'oxiuiate  cau..;e, 
whether  tho  houso  Lamed  was  the  lirst 
1  itter  being  so  sit- 
'  .action  is  a  emise- 
-  vo  1 10  anticijjated 
iir-t  ou  lire.  If,  on 
ti  ,'  fire  has  s^)i'ea(l 
beyond  its  natural  li  nits  by  means  of 
a  new  agency,  — ii,  f)r  example,  after 
its  ignition,  a  high  wind  siu)uld  arise, 
and  carry  burnin  ;  brands  to  a  grv;at 
distance,  l>y  wiiiid  a  lire  is  cau^;ed  in 
a  place  that  would  luive  been  safe  but 
for  the  wind,  -  -  :  aeli  a  loss  miglit 
fairly  be  set  dowix  a-;  a  renuito  conse- 
quence, for  which  Uie  railway  com- 
pany should  not  h,:  ':eld  responsible." 
1  Kulm  V.  Jewel r,;iL>  X.  .1.  l<;,p  017. 
^  Kuhu  V.  JewoLi.  ;}2  N.  J.  Eq.  047. 


or  the  tenth,  the 
uated   that  its  de 
quence   rcasouabl; 
from  setting   the 
the    other   hand. 


§  1031 


PERSONAL  WRONGS. 


1754 


house,  is  not  the  less  an  act  for  which  damages  may  be 
recovered  because  the  fire  first  caught  in  shavings  negli- 
gently left  by  a  third  person,  or  because  the  city  was  neg- 
ligent in  putting  out  the  fire  after  it  once  started.'  Thus 
in  the  following  cases  it  has  been  ruled  that  the  defend- 
ant starting  the  fire  was  liable  for  all  the  damage  that  it 
caused,  viz.:  Where  fire  caught  from  the  sparks  of  the  de- 
fendant's locomotive  on  the  land  of  D.  The  defendant's 
servants  were  successfully  extinguishing  it  when  D  desired 
them  to  desist,  as  he  wished  to  have  it  burn  up  the  bogs. 
They  desisted,  but  it  communicated  to  and  injured  the 
plaintiff's  adjoining  land.^  Where  sparks  were  negli- 
gently thrown  from  the  smoke  stack  of  a  mill,  and  carried 
by  a  gale  of  wind  in  the  direction  of  plaintiff's  build- 
ing. Plaintiff's  building,  however,  was  actually  fired  by 
sparks  and  cinders  from  an  intervening  building  two  hun- 
dred feet  away,  which  was  fired  directly  from  the  sparks 
from  the  mill.'  Where  a  locomotive  set  fire  to  the  grass 
near  the  track;  the  fire  crossed  the  land  of  B,  C,  and  D  be- 
fore it  reached  the  property  of  A.*  AVhere  sparks  escaped 
from  the  engine  to  a  carpenter's  shop  which  was  close  to 
the  track,  which  was  consumed,  the  fire  being  carried 
across  a  street  sixty  feet  wide  to  the  dwelliiig-houso  of  A.^ 
Where  fire  from  a  locomotive  having  been  communicated 
to  th(j  barn  of  B,  it  was  carried  through  a  shed  to  the  barn 
of  A."  Where  B's  bridge  and  A's  bridge  were  situated 
fifty-eight  feet  apart;  B's  bridge  was  set  on  fire  by  sparks 
which  came  from  B's  engine,  and  the  fire  was  communi- 
cated to  A's  bridge.^  Where  a  fire  commenced  on  the  de- 
fendant's track,  in  some  dry  grass,  and  spread  up  the  adja- 


'  Atkinson  v.  Transportation  Co.,  60 
Wis.  141;  50  Am.  Hep.  ;i52. 

^  pSininionils  v.  11.  ll.  Co.,  52  Conn. 
204;  r.L'  Am.  Rop.  587. 

^  Adams  v.  Young,  44  Ohio  St.  80; 
58  Am.  llep.  7S9. 

*  Ptrlcy  r.  R.  R.  Co.,  98  Mass,  418; 
90  Aiii.  Dec.  045;  Delaware  etc.  R. 
R.  Co.  V.  Salmon,  39  N.  J.  L.  299;  23 


Am.  Rep.  214;  Henry  v.  R.  R.  Co., 
50  Cal.  17G. 

^  Hart  V.  E.  R.  Co.,  13  Met.  99;  46 
Am.  Dec.  719.  See  Hoyt  v.  Jeliers, 
30  Mich.  181. 

«Iugersoll  V.  R.  R.  Co.,  8  Allen, 
438. 

'  Hookset  V.  R.  R.  Co.,  38  N.  H. 
243. 


1754 


1755 


TORTS  IN  GENERAL. 


§1031 


ay  be 

iiegU- 

sneg- 
Thu3 

3fend- 

hat  it 

he  de- 

dant's 

Icsired 

}  bogs. 

ed  the 
negli- 

carricd 
baild- 

red  by 

w  hun- 
sparks 

le  grass 

d  Dbe- 

escaped 

close  to 
carried 
of  A.' 
nicated 
le  barn 
ituated 
sparks 
[iimuni- 
the  de- 
ll u  adja- 

l.  R.  Co., 

let.  99;  46 
V.  Jetiers, 

,,  8  Allen, 

38  N.  H. 


JO 


cent  bank,  over  its  right  of  way,  to  A's  wood,  a  part  of 
which  was  situated  within  fifty  feet,  and  a  part  within  two 
hundred  feet  of  the  track,  and  destroyed  it.^  Where  sparks 
escaped  from  the  defendant's  locomotive,  and  fell  upon 
the  ground  of  an  adjoining  proprietor,  which  was  covered 
with  broom-sedge  and  dry  grass;  it  burned  across  this  lot 
about  one  hundred  and  fifty  yards  to  the  land  of  A,  where 
it  consumed  a  fence  and  some  dry  grass,  and  spreading 
from  tliese,  destroyed  a  quantity  of  young  timber  and 
fence-rails,  the  property  of  A.^  Where  a  quantity  of  grass 
on  the  line  of  a  railroad  was  set  on  fire  by  sparks  from  a 
locomotive;  the  fire  spread  until  it  reached  the  farm  of  A, 
situated  nearly  a  mile  from  the  railroad  track,  where  it 
destroyed  some  timber  belonging  to  A.^  Where  B's  ele- 
vator, which  was  situated  within  twenty  feet  of  the  de- 
fendant's track,  was  burned  by  sparks  which  escaped 
fi'om  one  of  its  engines;  the  fire  spread  to  the  elevator 
of  A,  situated  seventy  feet  distant,  and  destroyed  it.* 
AVhere  A's  house  stood  one  hundred  feet  from  the  rail- 
road track,  a  quantity  of  shavings  being  gathered  around 
it,  sparks  were  blown  by  a  high  wind  into  the  dead  grass 
adjoining  the  track,  from  whence  they  were  communi- 
cated to  the  shavings  and  the  building.®  Where  fire 
escaped  from  a  railroad-locomolive  and  fell  upon  a  strip 
ol"  ground  forty  or  fifty  yards  wide,  which  was  covered 
^\-iih  dry  grass  and  other  combustible  matter;  it  spread 
from  thence  and  destroyed  A's  fence.*'  Where  sparks  from 
the  defendant's  locomotive  set  fire  to  the  prairie  along  its 
right  of  way;  the  grass  being  dry  and  the  wind  high,  the 
fire  extended  about  three  miles  during  the  evening  and 
night,  burning  slowly  during  the  night,  when  the  wind 
luul  fallen;  next  morning,  the  wind,  rising,  carried  the  fire 

'  Aimapolia  etc.  R.  R.  Co.  v.  Gantt,  *  Small  v.  R.  R.  Co.,  6  Cent.  L.  J. 

39  Mil.  115.  310. 

^  I'liila.  etc.  R.  R.  Co.  v.  Constable,  ^  Coates  v.  R.  R.  Co.,  61  Mo.  38. 

39  M(l.  149.  «  Clemens  v.  R.  R.  Co.,  53  Mo.  3G6; 

^  Builiugton  etc.  R.  R.  Co.  v.  West-  14  Am.  Rep.  400. 
over,  4  Neb.  2G8. 


g  1002 


PERSONAL   WRONGS. 


175G 


somo  five  miles  farther,  when  it  reached  A'sfarm  and  de- 
stroyed his  property.^ 

Iij.r.sTKATioNs. — The  defendant's  locomotive,  in  passing 
through  a  viil;\gc,  thn'W  out  great  quantities  of  unusually 
hirgo  eiiiders.  ;vlii('h  set  on  xire  two  buildings  and  a  lumber- 
yard. The  weatiicr  was  very  dry,  and  the  wind  blowing  freely 
from  the  south.  One  of  the  buildings  thus  ignited  was  a  ware- 
house ne.T  the  track.  From  this  the  heat  and  flam',;  speedily 
conuuunieaied  to  a  Iniilding  of  the  plaintiffs,  situated  al;out 
tv/o  hundred  t'ett  distant,  whereby  it  and  most  of  its  content.s 
were  et)iisnined.  There  was  evidence  of  neghgence  on  the  part 
of  the  servants  of  the  defendant.  Held,  that  the  negligence  of 
the  sei'vaiils  of  the  defendant  was  the  proximate  cause  of  tlio 
loss  sustained  by  the  plaintiffs:  Feat  v.  R.  E.  Co.,  59  111.  349; 
14  Am.  Ilep.  1'").  Sparks  from  defendant's  locomotive  set  fire 
to  prairie  along  defendant's  lineof  railway,  on  evening  of  the  2od 
of  Kovem'uer,  1872.  The  grass  being  rank  and  dry  and  wind  high, 
fire  extended  about  three  miles  during  that  evening  and  night, 
burning  njore  s'owly  during  night,  because  wind  had  been  less 
violent.  Next  morning,  wind  arose  again,  and  blew  hard,  as 
Tt^as  not  unu.^ual  ia  that  country  (southwest Missouri),  and  car- 
ried tlie  fire  some  five  miles  farther,  whence  it  reached  plaintifT's 
farm,  and  destroyed  property  of  plaintiff.  In  an  action  for 
damages  for  destruction  of  plaintiff's  property  through  negli- 
gence of  defendant's  railway,  held,  that  the  damage  by  fire  must 
be  considered  as  the  direct  and  natural  result,  such  as  would 
be  reasonably  anticipated,  and  that  the  high  wind  at  that  sea- 
son of  the  year,  although  aiding  in  the  spread  of  the  fire,  was 
neither  extraordinary  nor  remarkable,  and  could  not  be  regarded 
as  the  introduction  of  a  new  agency:  Pocpprrs  v.  11.  R.  Co.,  07 
Mo.  715;  29  Am.  Rep.  518.  Sparks  from  a  locomotive  set  lire 
to  combuetihlo  material  on  the  right  of  way.  The  fire  spr.;ad 
toward  A\s  land,  and  A's  fifteen-year-old  daughter  was  Inirned 
to  death  in  trying  to  jnit  it  out.  Held,  that  an  action  was  not 
mi'intainablo  a.g.iinst  the  railroad  company:  Sealo  v.  R.  R.  Co., 
65  Tex.  274;  57  Am.  Rep.  G02. 

§  1032.  Law  and  Fact.—  Wlien  it  is  doubtful  as  to 
whether  damages  are  proximate, or  speculative  and  remote, 
the  question  should  be  submitted  to  the  jury,  under  proper 
instructions.'^ 

1  Poeppera  r.  R.  11.  Co.,  07  :Mo.  715;  3G6;   14  Am.  Rep.    460;    Tolcilo  etc. 

29  Am.  Kep.  518.  R.  R.  Co.    v.   Pindar,  5.3  111.  447;    5 

'■*  xUotiip.son   oil    Negligence,    1100,  Am.    Rep.   ,')7;   Patten  r.  R.  R.  Cd., 

citing  Cleiueus  v.  R.  R.  Co.,  53  Mo.  32  Wis.  524;  Hoag  v.  R.   R.  Co.,  S5 


kill  I 

kUr'll 

RlK 

Ami 

Pu.r 

15:> 
7  I 

UlUlJ 

BrJ 

G  d 


75G 
de- 


ising 
.tally 
iber- 
reoly 
iv  arc- 
ed ily 
about 
itents 
3  part 
tice  of 
:>f  Iho 
[.  S40; 
ct  fire 
he  2od 
Ibigh, 

en  less 
urd,  as 
nd  car- 
autiff's 
;ion  for 
I  negli- 
re  iiiui^t 
^voVlld 
lat  pea- 
re,  was 
> garde d 
Co.,  07 
set  lire 
spread 
burned 
\\Tas  not 
.  R.  Co., 


il  as  to 

remote, 

(r  proper 


holetlo  etc. 
llU.  447;  5 
111.  R.  <-'«'- 
111.  Co.,  b>5 


1757 


TORTS    IN    GKNERAL. 


1033 


g  1033.  Remedies  by  Act  of  Party  —  Abatement  of  Nui- 
sance. —  In  the  case  of  a  private  nuisanc'O  or  a  pjblie  one 
from  which  he  sufTers  a  special  injury,  the  party  injured 
may  abate  it;  that  is,  he  may  himself  remove  it.'  If  it  is  a 
private  nuisance,  any  person  injured  l)y  its  continuance 
may  abate  it.^  If  it  is  a  public  nuisance,  it  is  essential  that 
Ww  person  shall  have  suffered  a  special  injury  not  suffered 
by  the  whole  public,  for  in  the  latter  case  the  public 
oflicers,  and  not  the  individual,  must  abate  it."  "  Wlien 
tiny  public  way  is  unlawfully  obstructed,  any  individual 
who  wants   to   use    it  in    a  lawful  way  may  remove  the 


I'a.  St.  29.3;  27  Am.  Rep.  G53;  Scott 
r.  Huiitor,  40  Pa.  St.  192;  84  Ain. 
l)w.  54J:  Saxton  i\  Bacon,  31  Vt.  S40; 
Tutr  r.  Wannan,  2  Com.  B.,  N.  S.. 
V;^l);  Lake  V.  Millikuu,  02  Mo.  240; 
il)  Am.  lie]).  450;  Scark  v.  Lancaster, 
57  N.  II.  8S;  Willoyn  Belfast,  01  Mc. 
6G1);  Stark  v.  R.  R.  Co.,  57  N.  H.  88; 
Peiiu.  etc.  R.  R.  Co.  v.  Laccy,  89  Pa. 
St.  458. 

'  Rurnham  v.  Hotchkiss,  14  Conn. 
310;  Rung  7'.  Shonebergcr,  2  Watts,  23; 
20  Am.  Dec.  95;  Gates  v.  Blincoo, 
2  Dana,  l.>8;  20  Am.  Dec.  440;  Man- 
liattan  "Mf;,'.  Co.  v.  Van  Kur.'3en,  23 
N.  J.  .Eq.  251;  Barclay  v.  Com., 
25  Pa.  St.  503;  04  Am.  Dec.  715; 
Rlica  r.  Forsyth,  37  Pa.  St.  500; 
78  Am.  Deo.  441;  Calcf  r.  Thomas, 
81  111.  478;  Arundel  v.  McCulloch, 
10  Mass.  70;  Oravcs  v.  Shattuck,  35 
N.  11.  257;  GO  Am.  Dec.  530;  Mohr 
r.  Gault,  10  Wis.  513;  78  Am.  Dec. 
CS7;  Larson  v.  Furlong,  03  Wis.  323; 
Anioskcag  etc.  Co.  v.  Goodale,  40N.  H. 
53. 

-  Rung  r.  Shoneberger,  2  Watts,  23; 
2i)  Am.  Dec.  95;  State  v.  Parrott,  71 
^'.  C.  311;  17  Am.  Rep.  5. 

'  Burnhain  v.  Hotchkiss,  14  Conn. 
311;  State  i:  Paul,  5  R.  I.  185;  Hop- 
kin:i  c.  Crombie,  4  N.  H.  520;  Amos- 
kcag  Co.  r.  Goodale,  40  N.  11.  53; 
Rusi^c,  Shoneberger,  2  Watts,  23;  25 
Am.  Dec.  95;  Philber  v.  Mat;on,  14 
Pii.  Sl.  300;  Gates  i\  Blincoo,  2  Dana, 
15S;  20  Am.  Dec.  410;  Gray  r.  Aycrs, 
7  Dana.  375;  32  Am.  Dec.  107;  Sel- 
man  r.  WoU'o,  27  Te.xas,  68;  Moffett  v. 
Brewur,  1  Iowa,  348;  Adams  v.  Beach, 
0  Hill,  271;  Lansing  v.  Smith,  8  Cow. 


}46;     Rogers    v.    Rogers,    14  Wend. 
131;    Ely\v   Supervisors,    30    N.    Y. 
297;    Fort  Plain  Bridge  Co.  r.  Smith, 
30  N.  Y.  44;  Hart  r.  Mayor,  9   Wend. 
571;     24   Am.    Dec.    105;     O^ens    v. 
State,  52  Ala.  400;  Clark  ,-.  Ice  Co.,  24 
Midi.  508:  Lincoln  r.  Chadbonrne,  56 
Me.  197;  Brown  r.  Pei-kins,  12  Gray, 
89;  the  court  sayingt  "The  true  theory 
of  abateinent  of  nuisance  is,  tliat  an 
individual  citizcsn  may  abate  a  private 
nuisance  injurious   to   liini,  when  he 
could  also  bring   an  action;  and  also 
jvhen   €a   comnion   nuisance    obstructs 
his  individual  right,  he  ur.iy  remove  it 
to  enable  him  to  enjwy  tliat  light,  and 
he  cannot  bo   callecl  in  qui!stiou  for  so 
doing.     Ai  in  the  case  of  the  obstruc- 
tion across  a  higliv.'ay  and  an  uuautlior- 
izcd  bridgt!  over   a    navigable  water- 
course, if  ho  hai  occasion  to  use  it,  he 
may  remove  it  by  way  of   abatenieut. 
But  this  would   not    justify  strangera 
being  inhabitants  of  otliei-  parts  ot  the 
commnionwcalth,  having  no  such  occa- 
sion to  use  it,  to  do  the  same.     Some 
of  the  earlier  cases,  perhaps,  in  laying 
down   the    general   proposition     that 
private  subjects  may  abate  a  common 
nuisance,  did  not  expressly  mark   this 
distinction;  buL   we   think,  upon  the 
authority  of  mod-TU  cases  where  the 
distinctions  are  more  accurat'ly  made, 
and  upon  priu  iplo,  this  is  the    true 
rule    of   law:    Lonsdale    c.   Nelson,   2 
Barn.  &  C.  311;   3    Dowl.   ct    R.    500; 
Mayor  etc.  of  Colchester  r.   Brooke,  7 
Ad.  &  E.,  N.  R.,  370;  Gray  r.  Ayros,  7 
Dana,  375;  32  Am.  Dec.  107;  State  v. 
Paul,  5  R.  I.  185." 


§  1033 


PERSONAL  WRONGS. 


1758 


obstruction."'  Every  person  who  assumes  to  judge  of 
and  remove  an  obstruction  to  a  highway,  upon  the 
ground  that  it  is  a  nuisance,  does  so  at  his  own  risk;  and 
if  he  misjudges,  he  is  liable  for  the  damages.^ 

A  citizen  has  not  the  right  to  remove  any  obstruction 
on  the  public  street  or  highway  merely  because  such 
obstruction  is  a  public  nuisance.  No  such  right  exists 
in  any  person,  except  one  who,  apart  from  the  injury 
which  he,  as  one  of  the  public,  sustains  in  common  with 
his  fellow-citizens,  is  especially  inconvenienced  by  the 
obstruction  on  the  street.^  A  building  erected  within 
the  limits  of  a  highway  cannot  be  abated  by  individuals 
as  a  nuisance,  unless  it  actually  obstruct  the  passage.*  An 
obstruction  placed  in  a  private  road  by  the  owner  of 
land  over  which  it  is  laid  cannot  be  removed  by  one 
having  no  right  to  use  the  road.''  Adjacent  land-own- 
ers may  lawfully  use  the  space  between  the  carriage- 
path  and  sidewalks  for  the  growing  of  trees  for  orna- 
ment or  use.  Trees  thus  situated  are  in  no  sense  nui- 
sances, but  private  property  especially  protected  by  statute; 
and  if  they  are  injured  or  unreasonably  endangered  by  a 
building  being  moved  through  the  highway,  the  owners 
are  warranted  in  employing  suflBcicnt  force  to  protect 
them  from  actual  or  impending  destruction.^  The  abate- 
ment must  not  cause  a  breach  of  the  peace,  and  hence 
if  it  is  resisted,  the  party  must  desist  and  resort  to  the 


1  Anindel  v.  McCuUocli,  10  Mass. 
71;  Rung  v.  Shoneberger,  2  Watts, 
23;  25  Am.  Dec.  95;  Lincoln  v. 
CliadbouniL',  50  Mo.  197;  State  v. 
Parrott,  71  N.  C.  311;  17  Am.  Rep. 
5;  Wi'tmorc  v.  U'racy,  14  Wend. 
250;  '2S  Am.  Rep.  525;  Hubbard  v. 
Deininir,  21  Conn.  356;  Burnham  i\ 
Hotchkisa,  14  Conn.  311;  Oliver  v. 
Lofton,  4  Ala.  210.  One  who  has 
occasion  to  leave  a  load  in  the  high- 
way must  roniovo  it  with  promptness. 
If  he  lets  it  remain  there  an  unreason- 
able time,  it  may  be  removed  as  a 
nuisance:    Northrop  v.   Burrows,    10 


Abb.  Pr.  305.  A  gate  erected  on  a 
higliway  pursuant  to  an  iict  isi  a  i)ublie 
nuisance  after  the  act  expires,  and  may 
bo  abated  by  any  one:  Adams  i\ 
Beach,  C  Hill,  271. 

'■*  Howard  ?'.  Robbing,  1  Lans.  63; 
Graves  v.  Shattuck,  35  N.  H.  257;  09 
Am.  Dec.  537. 

'  Goldsmith  t'.  Jones,  43  How.  Pr. 
415;  Clark  v.  Lake  St.  Clair  Ice  Co., 
24  Mich.  508. 

*  Hopkins  v.  Crombie,  4  N.  H.  520. 

^  Drake?-.  Roger.-i,  3  Hill,  604. 

«  Graves  r.  Shattuck.  ?5  N.  H.  257; 
69  Am.  Dec.  537. 


1758 


1759 


TORTS   IN    GENERAL. 


§  1033 


^go  of 
u   the 

k;  and 

•action 
3   such 

exists 

injury 
)n  with 

by  the 

within 
ividuala 
gG.*  An 
vner   of 

by  one 
ud-ovvn- 
jarriage- 
Dr  orua- 
nso  nui- 
-  statute; 
red  by  a 
owners 
protect 

ic  abate- 

d  hence 

t  to  the 

IjcteJ  on  a 
.  i^  a  public 
[c^i,  and  may 

Adama    v. 

Lans.   63; 
H.257;  C9 

Is  How.  Pr. 
^L'.r  Ice  Co., 

J  N.  H.  520. 
L  G04. 
,  N.  U.  257; 


courts.'  And  as  a  rule,  the  party  permitting  the  nuisance 
must  bo  first  notified  of  its  existence,  and  given  a  reason- 
able time  to  remove  it  himself.''  But  in  cases  of  necessity, 
this  notice  is  not  requisite;^  and  the  party  abating  the 
nuisance  must  do  so  with  as  little  injury  as  possible.'*  In 
removing  it,  ho  is  liable  to  the  owner  for  a  wanton  or 
unnecessary  injury.^ 

Where  a  nuisance  consists  in  the  use  to  which  a  build- 
ing is  put,  and  not  in  its  location,  the  abatement  cannot 
go  beyond  putting  a  stop  to  that  use.®    Thus  a  manufac- 


'  Baldwin  v.  Smith,  82  111.  162; 
Miller  r.  Burcli,  32  Tex.  208;  5  Am. 
Rep.  242;  Day  v.  Day,  4  Md.  262; 
Graves  v.  Shattuck,  35  N.  H.  257; 
CO  Am.  Doc.  y.'JO;  Perry  v,  Fitzhowc, 
8  Q.  B.  757. 

'^  Jones  V.  Jones,  IJIurl,  &  C.  1 ;  Perry 
V.  Fitzhowe,  8  Q.  B.  757;  Meeker  v. 
Van  Keiidselaer,  ]5Weud.  397;  State 
r.  Parrott,  71  N.  C.  311;  17  Am.  Rep. 
5;  Slight  V.  GutzbflF,  35  Wis.  675;  17 
Am.  Ki!p.  476;  Piersout".  Green,  3  N. 
J.  L.  407;  25  Am.  Dec.  497. 

"  Van  Wormer  v.  Alban,  15  Wend. 
2G2;  Meeker  v.  Van  Renaselaer,  15 
WemL  307 ;  Lonsdale  i\  Nelson,  2  Barn. 
&  C.  302;  the  court  saying:  "Nui- 
sances hy  act  of  commission  are  com- 
mitted ill  detianco  of  those  whom  such 
nuisances  injure;  and  the  injured 
party  may  ahato  them  without  notice 
to  the  party  wiio  committed  them; 
but  there  is  no  decided  case  which 
eanotions  the  ahatenieut  by  an  indi- 
vidual of  nuisances  from  omission,  ex- 
cept that  of  cutting  the  branches  of 
trees  whicli  overhang  a  public  road,  or 
the  private  property  of  the  person 
who  cuts  them.  The  permitting  these 
brauchos  to  extend  so  far  beyond  the 
soil  of  tlie  owner  of  the  trees  is  a 
most  uuecpiivocal  act  of  negligence, 
which  distinguishes  this  case  from 
most  of  the  other  cases  that  have 
occurred.  The  security  of  lives  and 
property  may  sometimes  require  so 
speedy  a  remedy  as  not  to  allow  time 
to  call  on  the  person,  on  whose  prop- 
erty the  mischief  has  arisen,  to  remedy 
it.  In  such  cases  an  individual  would 
be  justitied  in  abating  a  nuisance  from 
omission  without  notice.    In  all  other 


cases  of  such  nuisances,  persons  should 
not  tako  tho  law  intotheirown  hands, 
but  follow  the  advice  of  Lord  Hale, 
and  appeal  to  a  court  of  justieo," 

*  Groenslado  ?•.  Ilalliday,  6  Bing. 
379;  Indianapolis  ?•.  Miller,  27  Ind. 
394;  State  v.  Mod'ott,  1  G.  Greene, 
247;  Moffettr.  Brewer,  1  G.  (irecne, 
348;  Hicks  v.  Dom,  42  N.  Y.  47;  9 
Abb.  Pr.,  N.  S.,  <17;  Roberts  r.  Rose, 
L.  R.  1  Ex.  82;  the  court  saying: 
"  Where  a  porson  tittcmptj  to  jiutily 
an  interference  with  th.'  property  of 
another  in  order  to  nbato  a  niiisaiiec, 
he  may  justify  liims.  if,  as  against  the 
wrong-<loer,  so  far  as  his  interference 
is  positively  nccjssary.  Wo  aro  also 
agreed  that  in  abating  the  iuii*anco, 
if  there  are  two  waj's  of  doiug  it,  lio 
must  choose  the  least  miisohicvous  of 
the  two.  Wo  also  think  if,  by  one  of 
these  alternative  methods,  Ko;no  Wi'oiig 
would  be  done  to  an  iunoccufc  third 
party,  or  to  llio  public,  then  that 
method  cannot  bo  justiiicd  at  all, 
altliough  an  iiiterftrence  with  tha 
wrong-doer  himself  might  be  justified. 
Therefore,  where  tho  alternative 
method  involves  such  an  interference, 
it  must  not  be  adopted,  and  it  mr.y 
become  neces-ary  to  abate  tho  nui- 
sance in  a  manner  more  onerous  to  the 
wrong-doer. " 

*  Indianapolis  v.  Miller,  27  Ind.  394; 
Northrop  v.  Burrows,  10  Abb.  Pr. 
365. 

«  Brightman  1".  Bristol,  65  Mo.  426; 
20  Am.  Rop.  711;  Gray  v.  Avres,  7 
Dana,  375;  32  Am.  Dec.  ]07;^Vcleh 
V.  Stowell,  2  Doug.  (Mich.)  332;  Bar- 
clay V.  Com.,  25  Pa.  8t.  503;  64  Am. 
Doc.  715;  Ely  v.  Supervisors,  36  N.Y. 


1033 


PERSONAL   WRONGS. 


17G0 


tory  of  orfonslvo-smolling  oil  cannot  bo  pulliMl  down  to 
abiito  tlio  nuisauco,'  nor  can  u  building  which  is  a  bawdy- 


207:  Fiuluy  r.  llersbcy,  41  Iowa.  387; 
Miller  /■.  Biiruh,  I!.'  "iVx.  20.S;  5  A:ii. 
Rep.  24-2.  [ii  r.rinlitiimii  r.  ilristol, 
Go  Mc.  4L'(»,  'Jv»  Am.  Uep.  711,  the 
court  Hiiy;  "Tu  K  <  v.  riipiueaii,  1 
Strange,  (iS8,  tlie  (lefemlaut  \/as  in- 
dicted for  iv  miltanco  liy  rea^joii  of  liis 
tanii'.'ry,  and  lliiud  ClOO.  A  writ  of 
error  \va:s  biougiil,  ;iiidoue  of  the  rca- 
fjonsf^iveii  for  itsrcvoisalwa'i,  'tliattlie 
judgment  was  crroieou.sfor  want  of  an 
adjudieati(!n  that  the  nuianee  bo 
almted,'  'Bnt.'s'il  Lord  Raymond, 
'regularly,  tlie  jud^-aent  ou^ht  to 
be,  to  abate  bo  umdi  of  the  thing  u.s 
makett  it  a  imisancu li  a  dye- 
house  f)r  any  stini  'lit,'  trade  v.'cre  In- 
dicfed,  you  shall  not  pull  down  the 
house  wlu'i-c  tiie  tr.du  wa  i  carried  oa. ' 
In  the  »;anie  easo,  Reynolds,  J.,  saya: 
'  Roasting  of  cnii',,'0  was  lorinerly 
thouglil  a  nuisance,  taul  yet  nobody 
cver'iniagijied  t!;  house  in  which  it 
waa  roasted  ihould  be  pulled  down.' 
Then,  referring  i.>  the  iinery,  ho 
adds:  'I  shoukl  tli'.ik  it  would  liavo 
bsen  going  too  far,  if  they  hadadjuged 
the  whole  erection  to  bo  abated  for  a 
particular  abujo  (  i  it  in  dipping  some 
likina.' "'  S;:e  al  ;o  IJ.ircLiy  i:  Comuion- 
vealth,  2'>  Pa.  1^-it.  .lOiJ;  Ot  Am.  Dec. 
715.  In  WcLdi  r.  Stowtll,  '2  Doug. 
(Mich.)  iy,V.l,  an  aeilon  oi  trespass  was 
Lroiig'.it  for  the  do  .;  ruction  of  a  house 
of  ill-fame  by  the  cl.'y  marohal  of  De- 
troit, acting  in  pui.suance  of  a  city  or- 
dinance aurhorizir- j  him  to  proceed 
with  suiricient  fr,\  e  and  dcunolish  the 
same.  " It  id  said, "  said  'Whipple,  J., 
iu  delivering  tlio  » iiiuion  of  the  court, 
'"that  the  house  v,:i3  a  imijanec.  This 
may  bo  very  true ;  but  it  was  a  nui- 
sance in  conscqueuie  of  its  being  the 
resori  of  persons  of  ill  fame.  That 
v.-hich  coaititutej  or  causes  the  nui- 
eanco  m'ty  be  removed.  Thus  if  a  house 
is  used  ior  tho  pui'posc.j  of  a  trade  or 
business  by  wijich  t!iG  health  of  the 
puljlic  is  endang  led,  the  nuisance 
may  be  abated  by  r>  moving  whatsoever 
may  be  necessary  lo  pn^vent  tho  exer- 
cise of  .such  trade  or  business.  So  a 
house  iu  which  gaming  is  carried  on,  to 


tho  injury  of  thc!  public  morals,  tho 
individuids  by  whom  it  in  oc  npiuil 
may  bo  punished  by  indictmiii!,  and 
the  implements  of  g.imiiig  nniovcd; 
and  a  house  in  which  mdi'ccit  )i((turc3 
are  exhibited  is  a  nui>  nice  whidi  may 
be  abated  by  a  removal  of  tiie  piei  iires. 
Yet  in  this  and  theotlier  cases  stated 
it  v/ill  not  be  contended  that  a  pel  sou 
would  be  jiLsfcilied  in  demol'-.'il'ig  tho 
house,  for  the  obvious  reason  that,  to 
luppress  tiie  uuis;jnee.  suchanact  Vv'as 
unnecessary.  (So  in  tiie  i  asi;  bi'iore  us, 
tho  nuisance  was  not  caasid  by  iho 
erection  itself,  butbytli!  persons  who 
resorted  there  for  the  purposes  oi  pros- 
titution." In  Moody  r  iSiipeiVisora 
of  Niagara  Coutity,  'id  l?arb.  (',''.),  uu 
action  was  brought  for  the  de.-lruetiou 
of  a  bawdy-houso  which  was  bkcwiso 
the  resort  of  thieves,  robbeiM,  and  mur- 
derers, and  it  appeared  that,  immedi- 
ately before  its  destruction,  o.ie  oi  tho 
police  v«as  murdered  by  <h!  people 
congregated  theiw  It  v,a.<  held  tliat 
the  lact  that  tho  house  i  <  kept  as  a 
house  of  public  prostitution  remU  rs 
it  a  common  nuisance,  but  that  a  liouso 
cannot  bo  lawfully  der.troycd  by  a 
mob  liecausc,  for  the  time  being,  it  i  i 
devoted  to  a  purpose  whic'.i  the  law 
iharacterizea  as  a  commoii  ]iuMi';  nui- 
sance; when  it  is  tho  unlaw  .'ul  no  of 
a  building  that  constitutes  a  nuisance, 
tho  remedy  is  to  stop  huch  use,  and  not 
to  tear  down  the  buikling.  In  (h-ay 
V.  Ayres,  7  Dana,  •n-i,  '.)~  Am.  Deo. 
107,  the  court  expressed  a  li!ie  opin- 
ion. In  Ely  V.  Supcrvlo.s  of  Niagara 
Co.,  r,G  N.  Y.  'JOV,  a  similir  ca^e  of 
the  destruction  oi  a  house  of  ill-lame 
came  before  the  court.  ' '  T'lo^irop-rty 
of  theplaintift'wasnot  boyo'.'.aiii  •  pale 
of  ihcl.iw'.i  protection,  '  saul  i.lu*court, 
"  by  her  do;estable  and  criminal  con- 
duct. She  still  had  tho  ligh  t )  ex- 
pect and  re'y  implicitly  upo.i  th.i  zeal 
and  ability  of  the  p^  opcr  oflieer)  to 
defend  her  liouso  and  fu. m  cure  against 
tho  unlawful  efforts  of  any  piJjlie  in- 
dignation her  evil  practice  iniiglr  pro- 
voke." Ihe  same  views  are  fuily  sus- 
tained iu  Massachusetts  by  the  opinion 


w 


CV( 

to 

use( 
Jaw. 

CC.-i! 

Gra 

N. 

ing 

trove 

coiii> 


'  Brightman  v.  Bristol,  05  Me.  426;  20  Am.  Rep.  711. 


17G0 


17G1 


TORTS  IN   GENERAL. 


§  1033 


:n  to 
wily- 

ils,  tho 

u^  npicd 
lit,  and 
iuovlJ; 

|iHturi'3 
uh  may 

s  stated 
a  pi, '1. sou 
!i;_iirf  tho 
tJiat,  to 
I  uct  v/aa 

I  hy  ilio 
Mini  w'lio 
•HOI  proa- 

.,  0"'.),  au 
;.;Lrn<'tiou 
i  hlu'wiso 
,  auiliiiwr- 
,  iinnieili- 
oucd!  tb.o 
h  !  pcoplo 
liiia  t'.iat 
i  kept  :ii  a 
)U  icutU'i'd 

llill  ul!<jU:30 

ycd    l>y    ii 
l)oluv;,  it  is 
;'.i  tho  law 
pviMi"iuu- 
v.iiliv^o  of 
1  i>u'  ;aucJ, 
ISC,  ami  not 
111  (Vray 
A;ii.   Deo. 
Vi'.v.  npi»- 
of  N'u'.gara 
,.!•   ca.3  (if 
,,f  iH-:auio 

...tui '  paiJ 
.1  Ju'coui't, 
iinliial  con- 
Igh    I  >  cx- 


)0.1  111 


ofiii"!^'-'' 


zeal 
to 
;uro  aj^uust 
rpv.bliJ  111- 
.luijr'a-  pro- 
■e  i'uily  Bus- 
tlic  opinion 


house;'  for  in  both  cases  it  is  tho  use  of  tho  buildin;:^,  and 
not  tlio  buildings  thomselves,  which  constitute  the  nui- 
siinco.  But  where  a  dwelling-house  had  been  cut  up  into 
small  apartments  and  was  inhabited  by  a  crowd  of  filthy 
people,  it  was  held  that  it  might  bo  abated  by  pulling  it 
down,  Asiatic  cholera  prevailing  at  tho  time,  and  that 
being  tho  only  way  to  correct  the  oril.^  Tho  mayor  of  a 
city,  by  virtue  of  his  office,  may  demolish  a  wooden 
duelliug-houso  in  a  city  which,  by  reason  of  tho  com- 
bustiblo  nature  of  its  materials  and  the  disorderly  char- 


nf  Sbaw,  C.  J.,  in  Brown  v.  Perkins,  12 
Gray,  H'.>,  and  in  lihodo  Island,  by 
that  of  Ames,  (J.  J.,  in  State  v.  Paul, 
5  K.  i.  1S5.  Ill  Uudcrhill  t'.  Manches- 
ter, 41  N.  II.  214,  a  suit  was  brought 
by  a  Hah)on-kenpor  against  tho  defend- 
aiit  town  for  damages  caused  by  tlio 
destruction  of  plaintiflf'.s  property  by 
a  inoh.  Tlie  court  held  that  ho  could 
not  rceover,  because  hitj  business  led  to 
drunkenness  and  disorder;  and  by  tho 
provisions  of  tho  act  making  cities 
and  tov.'ns  liable  for  damages  caused 
by  mobs  or  riots,  it  was  provided  that 
no  persons  wore  entitled  to  recover, 
the  destruction  of  whoso  property  was 
caused  by  their  illegal  or  improper 
comluet.  Its  decision  i.s  placed  entirely 
upon  the  peculiar  language  of  the 
statute.  Doe,  J.,  in  hin  opinion,  how- 
ever, .says that  "tho  rioters  aro  liable 
to  the  plaintiff  for  tho  damage  done 
by  th'.m.  His  property,  thougn  solely 
used  in  violation  of  law,  could  not  be 
lawiuUy  destroyed,  except  under  pro- 
cess of' law:  Brown  r.  Perkins,  12 
Gray,  8.';  Woodman  v.  Hubbard,  25 
N.  11.  07;  7  Am.  Dec.  310."  In  Spald- 
ing r.  Preston,  21  Vt.  9,  an  action  of 
trover  was  brought  for  counterfeit 
coins  partly  finished,  against  tho  sher- 
ilfby  whom  they  had  been  seized  un- 
der process,  and  detained  to  be  used 
as  evidence  iipou  tho  trial  of  an  indict- 
ment against  tho  per.son  in  whoso  pos- 
session they  were  found,  and  likewise 
to  prevent  their  being  put  in  circula- 
tion; but  the  court  held  that  tho  ac- 
tion was  not  maintainable.  "  Such 
property,"  remarks  Redfield,  J.,  "so 
to  speak,  is  outlawed,  and  is  common 
plunder."  Counterfeit  money  is  per 
111 


sc  unlawful,  but  porgoc  oil  is  an  article 
of  commerce,  and  its  manxifacturo  an 
honest  and  lucrative  industry.  In 
Meeker  r.  Van  KensseLier,  15  Wend. 
397,  tho  destruction,  by  individuals,  of 
a  dwelling-house  during  tho  prevalence 
of  tho  Asiatic  cholera,  which  Avas  cut 
up  into  small  apartments,  inhabited  by 
pour  people  in  a  filthy  condition,  and 
calculated  to  breed  disease,  was  sanc- 
tioned, on  the  ground  that  it  was  a 
nuisance,  and  "that  there  was  no 
other  way  to  correct  tlio  evil  but  by 
pulling  down  tho  buildLiig."  But  this 
t'a3o  has  been  doubted  in  Welch  v. 
Stowell,  2  Mich.  332;  and  in  a  subse- 
quent case  in  New  Yojk  the  court  say 
that  it  can  only  bo  sustained  upon  tho 
ground  that  in  no  other  way  could 
tlie  safety  of  the  people  be  preserved. 
In  Lord  v.  Chadbonrne,  42  Me.  4-9, 
CO  Am.  Dec.  290,  a  suit  was  brought 
for  the  valuo  of  liquor -i  kept  for  sale  in 
violation  of  tho  statutes  of  tho  state; 
and  it  was  held  not  maintainable, 
among  other  reasons,  because  l)y  stat- 
ute the  status  of  tho  liquors  was  ille- 
gal. Not  so  in  this  case.  Tlie  plaintiff 
was  engaged  in  a  lawful  business.  If 
the  place  of  his  manufacturing  was 
improper,  that  was  to  be  determined 
by  a  jury,  not  by  a  mob  of  men  in 
disctuise. 

>^Ely  V.  Supervisors,  36  N.  Y.  297; 
Gray  r.  Ayres,  7  Dana,  375;  32  Am. 
Dec.  107;  Welch  v.  Stowell,  2  Doug. 
(Mich. )  332;  Barclays.  Commonwealth, 
25  Pa.  St.  503;  04  Am.  Dec.  715. 

'■*  Meeker  v.  Van  Rensselaer,  15 
Wend.  397;  Van  Wormcr  v.  Albany, 
15  Wend.  262. 


1033 


PERSON^VL   WRONOS. 


1762 


actor  of  its  occupants,  oudangors  tho  lives,  health,  and 
property  of  tho  neighboring  residents.*  The  legislature 
may  authorize  tho  abutcment  by  destruction  of  unhealthy 
houses.''  Tlio  assent  of  a  party  to  a  nuisance  will  not  take 
away  his  right  afterwards  to  abate  it,  if  ho  thinks  proper.''' 

Im.isthations. —  PlaintifThad  erected  an  oystor-house  in  a 
tidal  river  oppo^^ito  the  defendant's  villa  lots.  Defendant  tore 
it  down  Itefore  it  was  used,  on  tho  ground  that  it  obscured  tho 
prospect,  obstructed  tiio  access,  and  injured  the  value  of  the 
lots.  Held,  that  the  act  of  defendant  was  unjustidable:  /inw- 
den  V.  fjcwia,  18  R.  I.  180;  43  Am.  Rep.  21.  The  owners  of  a 
steamboat  licensed  to  run  on  a  navigable  river  notified  the 
owners  of  a  railroad  bridge  crossing  the  river  to  make  a  draw 
in  their  bridge  as  required  by  their  charter;  some  months  after, 
tho  owners  of  tho  boat  arriving  with  their  boat  at  the  bridge, 
and  being  unable  to  pass  it,  no  draw  having  been  made,  tore 
down  part  of  it  and  passed.  Held,  a  lawful  aliatenumt  of  a 
nuisance:  State  v.  Parrott,  71  N.  C.  311;  17  Am.  Rep.  5.  The 
plaintiffs,  while  occupying  the  store  adjoining  that  of  defend- 
ants, caused  to  bo  erected,  without  any  permission,  in  front 
of  defendants'  store,  a  triangular  box,  seven  feet  high,  and  pro- 
jecting about  two  feet  and  a  half  from  the  curb  upon  the  side- 
walk, around  a  telegraph-pole,  and  caused  their  names  and 
business  to  bo  printed  upon  it,  using  it  as  a  sign,  and  the  de- 
fendants ordered  tho  plaintiffs  to  remove  the  box,  and  threat- 
ened to  remove  it  themselves  and  to  obliterate  the  sign,  and 
upon  the  plaintiffs  refusing,  the  defendants  caused  the  names 
and  sign  on  the  box  to  be  daubed  with  paint  so  as  to  obliterate 
then).  Held,  that  the  defendants  were  liable  to  an  action  for 
malicious  trespass:  Gokhmith  v.  Jones,  43  IIow.  Pr.  415. 
Plaintiff,  who  owned  the  land  on  both  sides  of  the  highway 
where  a  stream  of  water  crossed  it,  erected  obstructions  so  that 
the  stream  could  not  be  reached,  but  not  interfering  with  travel 
on  the  highway.  Held,  that  such  obstructions  were  not  a  nui- 
sance, public  or  private,  and  that  defendant,  who  had  watered 
his  cattle  at  that  place  for  over  twenty  years  had,  from  such 
use,  no  right  to  continue  to  do  so,  and  was  guilty  of  trespass  in 
tearing  the  obstructions  down:  Strickland  v.  Woolworth,  3 
Thomp.  &  C.  286.  A  merchant  owning  a  store  fifty  feet  from 
a  railroad  track  in  the  same  street,  in  unloading  a  car  of  flour 
by  skids  three  foot  high  extending  from  car  to  store,  refused  to 
let   the   defendant's  team   repass,    whereupon   the   defendant 

'  Fiolcls  V.  Stokley,  99  Pa.  St.  306;        »  Theilan  v.  Porter,  U  Lea,  622;  52 
44  Am.  Kep.  109.  Am.  Rep.  173. 

'  Filcher  v.  Hart,  1  Humph.  524. 


i 


4 


1762 


1703 


TORTS   IN   GEXEILVL. 


§§  1034,  1035 


and 

ature 
althy 
L  tako 
opor.' 

(0  in  a 
it  tore 
rd  the 
of  the 
;    Bnw- 
ra  of  a 
'unl  the 
a  draw 
;is  after, 
bridge, 
do,  tore 
Mit  of  a 
5.     The 
defend- 
in  front 
and  pro- 
the  side- 
uics  and 
I  the  de- 
,d  threat- 
ign,  and 
|io  names 
jbUterate 
.ction  for 
Pr.  415. 
highway 
IS  so  that 
ith  travel 
,ot  a  nui- 
[  watered 
■oni  such 
•espass  in 
\}l  worth,   ?> 
Ifeet  from 
,r  of  flour 
■efused  to 
efendant 

^ea,  622;  52 

jpU.  524. 


knocked  down  a  wooden  borH(»  Bupportinp  the  skids.  Tin;  side 
of  this  street  beyond  the  car  was  unobstructed.  Jlchl,  that  tbo 
defetubint  was  liable  in  trespass:  Mathews  v.  Kclxri/,  58 
Me.  50;  4  Am.  Rei).  248.  A.  placed  a  seino-reol  on  tb((  bind 
of  (}.  near  to  a  river,  and  0.  gave  bim  reasonal^lo  notic;t>  to  re- 
move it,  and  on  liis  neglect  to  remove  it,  cut  it  down,  and 
sboved  it  towards  the  river,  and  it  floated  off.  Held,  that  (\.'s 
acts  were  justitiiible,  and  not  a  trespass  upon  A.:  Ahm/  v.  (rrhi' 
neU,  V2  Met.  5;J;  45  Am.  Deo.  238.  The  raft  of  A  bad  cauglit 
on  a  dam,  and  B's  raft  had  beeti  cast  by  the  obstruction  of  A's 
raft  onto  tbo  bank,  and  a  tbird  raft  bad  caught  upon  I'.'s,  and 
tbere  was  danger  that  the  rafts  woubl  l)e  brolven.  Held,  tbat 
I]  bad  a  rigbt,  after  the  lapse  of  time  enough  for  A  to  remove 
bis  raft,  to  cast  away  enough  of  A's  raft  to  remove  the  obstruc- 
tion: J^hiliber  v.  Matson,  14  Pa.  St.  30G. 

§  1034.  By  Self-defense.  —  A  person  may  prevent  aw 
injury  threatonod  by  exorcising  his  right  of  soll-defcuse. 
Every  one  has  a  right  to  defend  his  own  person,  and  tho 
2)ersons  of  those  standing  in  the  relation  of  husband  or 
wife,  or  parent  or  child,  or  master  and  servant,  and  bis 
own  property  from  attack.*  Preventing  a  wrong-doer 
from  committing  an  unlawful  act  does  not  constitute  a 
cause  of  action  for  damages  in  his  favor.^ . 

§  1035.  By  Recaption  or  Reprisal.  —  Recaption  or  re- 
prisal is  a  remedy  by  the  act  of  tho  party  himself,  where 
any  of  his  personal  property,  or  any  person  to  whose  cus- 
tody he  is  entitled,  is  taken  or  detained  away  from  him. 
Tbis  consists  in  retaking  the  same  into  his  own  posses- 
sion whenever  or  wherever  he  may  peaceably  do  so.^  He 
must  not,  however,  in  so  doing,  break  the  peace.'  Yet  if 
he  breaks  the  peace,  the  entry  is  not  a  trespass,  but  he  is 
lial)lc   to   prosecution.^     The   owner   of    a   horse   which 

'  Scril)ncr  v.  Beach,  4  Denio,  448^  Bedell,  2  Watts  k  H.  225;  .37  Am.  Rop. 

47  Am.  Dee.  205.  SOS;   Scri1)uer  r.  Beach,  4  Deuio,  448; 

'  Binder  etc.  R.  R.  Co.  v.  Smith,  47  Am.  Dec.  205. 

I!)  Me.  \);  77  Am.  Dec.  246.  *  :i  Bla.  Com.  4. 

^  Codlcy  on  Torts,  50;   Sterling?).  '^  Brown    i\    Cram,    1    N.    II.    171; 

WaivLii,  51  N.  H.  217;  12  Am.  Rep.  Blades  v.  Briggs,  10  Com.  B.,  N.  S., 

HO;   15  >1.1)  r.  Bosworth,  Litt.  Sel.  Cas.  713;  Mills  v.  Wooters,  59  111.  234. 
^I;   12  Am.  iiep.  273j    Chambers  v. 


1035 


PERSONAL  WRONGS. 


1764 


aaother's  servant  has  harnessed  in  his  team  and  is  driv- 
ing violently  away  may  stop  the  team,  using  no  more 
force  than  necessary,  anc^  retake  his  horse/  The  owner 
of  real  estate  is  entitled  to  exclusive  possession  thereof, 
and  every  unauthorized  entry  thereon  is  a  trespass;  but 
if  one  take  the  goods  of  another,  and  carry  them  upon  his 
own  land,  the  owner  may  enter  to  retake  them,  because 
the  Avrong  of  the  other  excuses  the  entry.^  So  if  one, 
though  not  purposely  a  wrong-doer  himself,  has  receivea 
goods  from  another  whoso  possession  was  tortious,  the 
owner  may  rntcr  to  retake  them.^  If  one's  property  is  on 
the  land  of  another  with  the  latter's  assent,  express  or 
implied,  the  owner  may  enter  to  remove  it,*  provided  he 
give?  notice  of  hit.  intention  and  enters  at  a  reasonable 
time." 

If  one  sells  goods  which  are  in  his  own  possession,  and 
nothing  in  the  contract  of  sale  indicates  that  they  are  to 
be  delivered  elsewhere  than  where  they  are,  the  sale  itself 
is  an  implied  license  to  the  purchaser  to  enter  and  take 
the  goods  away;  and  tliis  license,  being  coupled  with  an 
interest,  is  incapable  of  being  revoked.''     So  where  one, 

18 


1  Hite  v.   Long,   6  Rand.   457; 
Am.  Dec.  720. 

-  Oooley  on  Torts,  50;  Chapman  t\ 
Thuiiiltlethorp,  Cm.  Eliz.  .3'J!);  Patrick 
r.  Colorick,  3  :\Ioes.  &  W,  483;  Wubb 
V.  Buavan,  6  Man.  &  (r.  1055;  Rich- 
p.nlsdn  V.  Anthony,  I'J  Vt.  'J73;  White 
r.  Twitcheli,  25  Vt.  (520;  00  Am.  Dec. 
2()4;  Spencer  v.  McOowen,  13  Wuml. 
2.50;  Nuwkirk  ?'.  8;ihler,  J)  Barb.  0.j2; 
Burns  v.  Johnson,  1  J.  J.  Marsh. 
1!)0;  State?;.  Elliott,  H  N.  H.  540; 
Sterling  v.  Warden,  51  N.  H.  217;  12 
Am.  Rep.  80;  Allen  n.  Fclaml,  10  B. 
Mon.  300;  Chambers  rj Bedell.  2  Watts 


8  Mjt.  34;  Sterling  v.  Warden,  51 
N.  H.  217;  12  Am.  Rep.  80;  White  v. 
Elwcll,  48  Me.  300;  77  Am.  Doe.  231; 
Chambers  v.  Bedell,  2  Watts  &  S.  225; 
37  Am.  Dec.  508;  Autbony  v.  Ilaucy, 
8  Bing.  187. 

^  Sterling  v.  Warden,  51  N.  H.  217; 
12  Am.  Rep.  80;  Blades  v.  Briggg, 
10  Com.  B.,  N.  S.,  713.  But  if  the 
owner  of  the  property  was  himself 
a  wrong-doer  in  leaving  it  on  the 
land,  he  has  no  right  to  enter  to  re- 
cover it-  Anthony  v.  Haney,  8  Bin 5. 
187;  Cess  v.  Kelley,  3  Blaekf.  4o'8; 
Heermance  v.  Vernoy,  G  Johns.  5;  Blake 


&  S.  225;   37  Am.  Dec.  508;   Scribner    v.    Johnson,   14   Johns.  400;    Crocker 


V.  Beach,  4  Denio,  448;  47  Am.  Dec. 
205. 

••'  Trudo  ?'.  A.'derson,  10  Mich.  357; 
81  Am.  Dec.  7515.  See  MriLeodc  Jones, 
105  Mass.  403;   7  Am.  Rep.  539. 

*  Richardson  v.  Anthony,  Hi  Vt. 
273;  Daniels  v.  Brown,  34  N.  H.  450; 
d'J  Am.  Dec.  605;  Nettletou  u.  Sykcs, 


V.  Car.son,  33  Me.  4o0;  Roach  v.  Dam- 
roji,  2  Humph.  425. 

"  Cooley  on  Torts,  51;  Wood  v. 
TSIanley,  11  Ad.  &  E.  34;  Giles  v.  Si- 
monds,  15  Oray,  441;  77  Am.  Dec. 
373;  Nettleton  v.  Sikes,  8  Met.  34; 
McLeod  V.  Jones,  105  Mass.  403;  7 
Am.   Rep.  539.    "A   license    is    im- 


764 


176 


TORTS  IN  GENERAL. 


§  1035 


riv- 
lore 
rner 
:eof, 

but 
1  his 
ause 

one, 
3ivea 
,  the 
is  on 
iss  or 
}d  he 
liable 

n,  and 
are  to 
)  itself 
d  take 
ith  an 
e  one, 

^\cn,  51 
White  V. 
)ec. 'J31; 

;S.  225; 

Ila.ucy, 

H.  217; 

Briggs, 

at  if  the 
himself 
on    tlie 

ar  to  re- 
8  Bin-;. 

dd.  438; 

.5;  Blake 
Crocker 
a'.  Dam- 

^ootl  V. 
lies  V.  Si- 
Im.  Dec. 
|Met.  34; 
\  403;  7 
ia   inx' 


I 


i 


upon  his  own  land,  has  been  rightfully  in'  possession  of 
property,  but  his  right  has  terminated  and  been  acquired 
by  another,  the  latter  may  lawfully  enter  to  take  it  away.^ 
So  where  property  has  been  obtained  by  fraud,  and  the 
vendor  rescinds  the  sale.*^  AVhere  property  exempt  from 
execution  is  taken,  the  debtor  may  recover  possession  of 
it  peaceably,  but  not  forcibly;  and  after  he  has  recovered 
it  peaceably,  it  will  be  trespass  in  the  officer  to  retake  it, 
and  assault  and  battery  to  retake  it  with  force.* 

Illustrations.  —  The  plaintiff  took  a  bar  or  pole  from  the 
defendant  without  permission  to  do  so,  to  use  in  tlie  erection  of 
a  staging,  and  the  defendant  retook  the  same  without  notice  to 
the  plaintiff;  and  in  consequence  of  taking  the  same,  the  said 
staging,  when  the  plaintiff  went  upon  the  same,  fell  and  injured 
the  plaintiff.  Plaintiff  brought  an  act"">n  to  recover  damages 
for  the  injury  thus  sustained.  Held,  that  as  the  plaintiff  was  a 
trespasser  in  taking  the  bar,  and  as  it  did  not  lose  its  identity, 
the  defendant  was  justified  in  the  recaption  of  it,  and  was  under 
no  obligation  to  give  the  plaintiff  notice  of  the  recaption:  WJiite 
V.  TwitchcU,  25  Vt.  G20;  60  Am.  Dec.  294.  M.  owned  and  had 
a  right  to  the  possession  of  personal  property  which  was  on  the 
premises  of  H.,  and  was  forbidden  by  the  latter  to  enter  for  the 
purpose  of  removing  it,  but  persisted  and  commenced  taking 
down  the  fence  in  oi  r  to  make  such  removal.  Held,  that  M. 
was  liable  for  trespa>^;  ITuppcrty.  Morrison,  27  Wis.  3G5.  In  an 
action  of  trespass  for  the  forcible  taking  of  a  cow,  it  appeared 


plieil,"  says  Wells,  J.,  iu  this  case, 
"because  it  is  necessary  to  carry  the 
gale  into  complete  effect,  ami  is  there- 
fore presuined  to  have  been  iu  the 
conteinplation  of  the  parties.  It  forms 
a  part  of  the  contract  of  sale.  Tlio 
seller  camiot  deprive  the  purchaser  of 
hid  property,  or  drive  him  to  an  ac- 
tion for  its  recovery,  by  withdrawing 
his  i;iiplied  permission  to  come  and 
take  it.  This  proposition  does  not 
apply,  of  course,  to  a  case  where  a 
severance  from  the  realty  is  necessary 
to  convert  the  subject  of  the  sale  into 

!)er.soiialty,  and  the  revocation  ia  made 
jufiiro  such  severance.  But  there  is 
no  .such  inference  to  be  drawn  when 
till'  property,  at  the  time  of  the  sale, 
i.s  not  upon  the  seller's  premises,  or 
when,  by  the  terms  of  the  contract,  it 
is  1.0  be  delivered   elsewhere.     And 


when  there  is  nothing  executory  or 
incomp''^te  between  the  ])arties  in  re- 
spect ^^  „iie  property,  and  tliero  is  no 
relation  of  contract  between  t'uem  re- 
spectiug  it>  except  what  results  from 
the  facts  of  legal  ownership  in  one 
and  possession  in  the  other,  no  infer- 
ence of  a  license  to  enter  upon  lands 
for  the  recovery  of  iho  propertj'  can 
be  drawn  from  that  relation  alone :  20 
Viu.  Abr.  508,  tit.  Trespass,  H,  a,  2  pi. 
18;  Anthony  v.  Haneys,  8  Ding.  ]8it; 
Willkims  V.  Morris,  8  Mees.  &  W. 
488." 

>  Sterling  v.  Warden,  51  X.  H.  217; 
12  Am.  Rep.  80:  52  N.  H.  197. 

■'  Wlieeldcn  v.  Lowell,  50  Me.  499; 
Hodgedeu  V.  Hubbard,  18  Vt.  504;  46 
Am.  Dee.  1()7. 

»  Sims  V.  Reed,  12  B.  Mou.  51. 


§§  lOOG-1039 


PERSONAL   WRONGS. 


1766 


that  plaintiff  had  sold  the  cow,  and  defendant  purchased  her 
from  Lis  vendee;  and  at  the  time  of  taking  she  was  in  poRses- 
Biou  of  a  third  party,  and  plaintiff  told  defendant  he  had  sold 
her,  and  that  he  might  take  her.  Held,  there  was  no  trespass,  al- 
though defendant,  in  taking  his  property,  used  such  violence  as 
amounted  to  a  breach  of  the  peace:  Mills  v.  Wooters,  59  111. 
234. 

§  1036.  Entry  on  Lands  to  Repossess  Them.  —  Where 
another  is  in  wrongful  possession  of  them,  the  owner  of 
lands  has  a  right  to  re-enter  and  eject  the  intruder.  This 
right  exists  either  when  one  has  gone  into  possession 
■without  right,  or  where  one,  having  had  an  estate  in,  or 
at  least  lawful  possession  of  the  lands,  has  had  his  right 
terminated  by  operation  of  law,  or  by  the  act  of  the  owner.^ 
But  thu  entry  must  bo  peaceful.^ 

§  1037.    Distress  of  Cattle  —  Damage-feasant.  — If  the 

cattle  of  one  man  stray  upon  the  lands  of  another,  thereby 
causing  him  damage,  he  may  distrain  and  hold  theU' 
until  the  damage  is  estimated  and  satisfied.  This  is  a 
common-law  right,  and  is  regulated  by  statute."  It  exists 
onlv  where  the  owner  would  be  liable  to  an  action.^ 

§  1038.  By  Distress  of  Goods.  —  An  extraordinary 
remed}'  was  allowed  a  landlord  by  the  common  law  which 
permitted  him  to  seize  for  his  rent  all  movable  articles, 
witli  a  few  exceptions,  on  the  premises,  and  whether 
belonging  to  the  tenant  or  not.  This  remedy  in  the 
United  States  is  now  either  entirely  obsolete  or  regulated 
by  statute.^ 

§  1039.  Remedy  by  Action.  —  This  remedy  is  the  most 
frequent,  and  is  the  subject  of  the  remainder  of  this  title. 

^  Coolcy  on  Torts,  58;  Tanntoii  v.  "  Cooloy  on  Torts,  58. 

Costal'.  7  Term  Hep.  4;>1;    Turner  v.  '' Cooley    on    Torts,    58.     See  post, 

Meynidtt,  I  Biiif,'.  158;  Argent  c.  I)ur-  Division  III,  Title  Animals, 

rant,    S   Term   Rep.    403;    Barnes   r.  *  Dickson  r.  Parker,  3  How.  (Miss.) 

Dean,  5  Watts,  543;  30  Ain.  Do  ■.  .346;  219;  34  Am.  Dee.  78. 

Tliouipson  r.  Craigmyle,    4    B.   Mon.  •' See  ^ov<,  Division  III.,  Title  Land- 

301:  41     Am.    Dec.    L'40;     Sharon   v.  lord  and  Tenant. 
Wooldrick,    18  Minn.  355. 


rM- 


.76G 


17G7 


TORTS   IN   GENERAL. 


§§  1040,  1041 


her 

sses- 
sold 
18,  al- 
ico  as 
)  lU. 


/"here 
er  of 

This 
jssion 
ill,  t 

right 


-If  the 

hereby 

theu^ 

lis  is  a 
t  exists 


"The  redress  the  law  will  give  will  be  suited  to  the  injury 
suffered.  If  cue's  land  is  taken  from  him,  he  shall  have 
the  proper  writ  for  its  recovery.  If  personal  property  is 
taken  which  he  prefers  to  recover  rather  than  have  judg- 
ment for  its  money  value,  he  may  demand  back  the  thing 
itself.  But  the  principal  remedy,  and  for  the  most  part 
the  only  available  remedy  which  the  law  can  give  for  a 
wrong,  is  an  award  of  money  estimated  as  an  equivalent 
for  the  damage  suffered."^ 

§  1040.  Who  are  Responsible  —  Infants  —  Married 
Women  —  Corporation  —  Lunatics.  —  It  is  no  defense  to 
an  action  of  tort  that  the  wrong-doer  is  an  infant; '  or  with 
certain  exceptions,  a  married  woman; ^  or  a  corporation.* 
In  general,  a  lunatic  is  liable  civilly  for  any  torts  which 
he  may  commit.^  A  lunatic  has  been  held  responsible 
for  tortiously  killing  an  animal  bailed;"  for  false  impris- 
onment.'' But  a  lunatic  is  not  responsible  where  tlio  in- 
tent is  ihegravvien  of  the  cliarge;  as  in  slander.^  Intoxica- 
tion is  no  defense,  even  in  an  action  of  slander.* 


•dinary 
which 

trticles, 

'hether 
in  the 

Igulated 

lie  most 
lis  title. 

See  post, 
\w.  (Miss.) 
[itlo  Land- 


§  1041.  Joint  Wrong-doers — Participation — Ratifica- 
tion. —  A  person  may  become  a  wrong-doer,  and  be  re- 
sponsible for  the  damage  done,  either  by  participation  or 
by  adoption.^"  If  one  agree  to  a  trespass  which  has  been 
committed  by  another  for  his  benefit,  trespass  will  lie 


•  Cooley  on  Torts,  GO. 

■'Sec  ante,  Diviaioii  I.,  Parent  and 
Child. 

^  See  ante,  Division  I.,  Husband  and 
Wife. 

*  Seo  a»fi;  Division  I.,  Corporations. 
"MorsL!  /•.  Crawford,  17  Vt.  4!)9;  44 

Am.  Doc.  :U'.»;  Cross  ik  Kent,  32  Md. 
SSI;  liciirciis  r.  McKonzio,  23  Iowa, 
3;J:{;  ',1-2  Am.  Dec.  428;  Hush  r.  Tctti- 
Ixmo,  4  N.  Y.  300;  Lancaster  Bank  v. 
Mcoro,  78  Pa.  St.  407;  21  Am.  Hop. 
24;  Kx  parte  Leighton,  14  Mass. 
207 

'■  Morse  r.  Crawford,  17  Vt.  499;  44 
Aiii,  Due.  349. 


'  Krom   V 
650. 

^  Gates  V.    Mereditli, 


Schoonmal:er,  3  Barb. 


7  T.id.    440; 


Horner?'.  Marshall,  oMiinf.  4.>0;  Dick- 
enson r.  Barker,  9  Mass.  22.");  (i  Am. 
Dec.  -)S;  Yeate.s  v.  Reed,  4  IJlaekf.  403; 
Bryant?'.  .lackson,  (5  Huuu»!i    199. 

*  Reed  V.  HarpiT,  25  Tovva,  87 ,  95 
Am.  ]>ec.  774;  McKej  v.  lii'^alla,  5 
III.   30. 

'*  All  persona  wlioaid,  abet,  counsel, 
or  procure  an  assault,  etc.,  to  be  eoai- 
mitted  are  jjriucipals,  \ihetlu)r  present 
or  absent  at  the  comniissiou:  Avery 
('  BulUly,  1  Rdot,  275;  fckkea  v,  John- 
son, 10  Mass.  389. 


mim 


1041 


PERSONAL   WRONGS. 


1768 


against  him,  although  the  act  was  not  done  in  obedience 
to  his  command  or  at  his  request.^  Trespass  lies  against 
one  who  carries  away  the  materials  of  a  building,  although 
he  did  not  assist  in  the  pulling  down.^  One  who  is  pres- 
ent at  and  encourages  .he  commission  of  an  assault  and 
battery  may  be  held  liable  as  a  principal,  although  he 
does  not  take  any  actual  part  in  the  violence.^  A  person 
to  be  liable  as  a  joint  trespasser  in  an  assault  and  battery, 
where  he  was  not  present  at  the  commission  of  the  offense, 
must  be  proven  to  have  done  something  v/hich  led  di- 
rectly to  the  commission  of  the  offense  by  his  co-tres- 
passer.'' A  person  who  goes  to  a  place  with  others  with 
the  intent  to  get  up  a  fight  with  persons  there  may  be 
liable  for  an  assault  and  battery  committed  in  the  execu- 
tion of  that  purpose,  although  he  did  not  participate  in 
such  assault.^  A  i  crson  does  not  participate  in  a  wrong 
b}'^  merely  approving  the  act  of  another,  or  by  not  prevent- 
ing it  when  within  his  power,  or  even  by  expressing  satis- 
faction at  its  commission."  One  who  is  present  at  the 
commission  of  an  assault  and  battery,  without  in  any  way 
encouraging  or  discouraging  it,  is  not  liable  in  damages 
therefor  to  the  person  assaulted.  Nor  is  it  material  that 
he  is  a  selectman  of  the  town  in  which  the  assault  and 
battery  were  committed,  and  that  he  participated  in  a 
public  meeting,  held  a  short  time  before,  at  which  a  com- 
mittee was  appointed  to  visit  those  suspected  of  being 
disloyal,  in  pursuance  of  which  the  plaintiff  was  visited 
by  the  committee,  followed  by  a  large  crowd  of  persons, 
by  some  of  whom  he  was  assaulted  in  the  presence  of  the 
defendant,  if  no  violence  was  suggested  or  contemplated 
at  the  meeting.^     Where  persons  fail,  when  it  is  in  their 


Caldwell  v.  Sacra,  Litt.  Sel.  Cas. 
118;  1L>  Am.  Dec,  285. 

^  Woodruff  7-.  Halsey,  8  Pick.  333; 
19  Am.  Dee.  3l«1. 

» Little  V.  Tingle,  2G  lud,  1G8; 
Frantz  >:  Lenhart,  56  Pa.  St.  3G5; 
Uuited  IStates  v.  Ricketta,   1  Crauch 


C.  C.  164;  Corneyt'.  Burks,  11  Neb. 
258 

♦Bird  V.  Lynn,  10  B.  Mon.  422. 

^  Rheinhart  *;.  Wliitehead,  64  Wis. 
42. 

«  Blue  V.  Christ,  4  111.  App.  351. 

'  Miller  v.  Shaw,  4  Alien,  500. 


P 


1768 

ience 
;aLiist 

lOUgll 

pres- 
t  and 
jxli  he 
)orson 

L 

altery, 
iffcnse, 
led  di- 
30-trcs- 
rs  with 
nay  be 
!  execu- 
ipato  in 
L  wrong 
irevent- 
ig  satis- 
,  at  the 
my  way 
la  in  ages 
nal  that 
lult  and 
)d   in  a 
a  com- 
|f  being 
visited 
bcrsons, 
[o  of  the 
Inplated 
Jin  their 

11   Neb. 

h.  4'2'2. 
,  (34  Wis. 

p.  351. 
500. 


17G9 


Torts  in  general. 


§  1041 


power,  to  prpv>^nt  a  merciless  battery  upon  a  feo'blc  old 
man,  other  slight  circumstances  may  convict  them  all 
as  principals  in  the  trespass,  though  they  did  prevent 
his  being  murdered.'  In  an  action  of  trespass  against 
two  or  more  acting  independently,  and  producing  a  re- 
sult injurious  to  the  plaintiff,  one  cannot  be  held  for  the 
acts  of  the  others.^  To  become  a  wrong-doer  1;  ,•  adoption 
or  ratification,  it  is  essential  that  the  original  act  was 
done  in  his  interest,  or  was  intended  to  further  his  pur- 
pose.^ The  ratification  must  also  be  made  with  full 
knowledge  of  the  facts.'*  It  is  not  conclusive  evidence  of 
adoption  that  the  party  receives  and  appropriates  a 
benefit  from  what  is  don<',''  or  that  he  employs  counsel  to 
defend  the  trespasser,"  or  that  Iv  takes  st'^ps  in  the  direc- 
tion of  a  compromise.^ 

Illustrations.  —  A  sees  B  defrauding  C,  and  fails  to  put  him 
on  his  guard.  A  does  not  participate  in  the  fraud  so  as  to  be 
lial)U;  for  it:  BrannocJ:  v.  liOuhJin,  4  Ircd.  61.  B,  knowing  that 
C,  the  driver  of  a  team,  had  hired  it  to  go  to  one  plane  only, 
iides  with  him  to  another.  B  does  not  thereby  become  a  tres- 
passer with  C:  Hubbard  v.  Iluni,  41  Vt.  37G.  A  allowed  B  to 
use  his  horse  and  wagon  and  barn  for  getting  in  ;rnd  thrashing 
grain,  tlie  title  to  which  was  in  dispute  between  C  and  B. 
Held,  that  this  did  not  implicate  A  as  a  trespasser:  IFcitzman 
V.  Dlrll,  11  Pa.  St.  264.  A  boy  ten  years  old  was  forcibly  put 
on  board  of  a  freight  train  by  its  brakeman,  and  against  his 
will  was  carried  five  miles.  He  returned  homo  on  foot,  run- 
ning most  of  the  way,  and  was  taken  sick  and  became  pcr- 
nuuKnlly  crippled  in  both  legs.     Ilcid,  that  the  brakeman  was 


>  GiUon  r.  Wilson,  ,3  T.  B.  Mon.  217. 

-' BkiisiU'lI  ?'.  .Stephens,  14  Nev.  17; 
3;i  A:ii.  Kep.  .O'^^. 

^  Ciiok'y  (III  Torts,  127;  citing  Wil- 
son ('.  TiDuman,  G  Man.  &  (f.  230; 
Kiiiuht  r.  Nelson,  117  ^lass.  4r>S; 
Mil;  my  r.  Lovejoy,  2  CliflF.  191 ;  3  Wall. 
1;  Kiistcrii  Counties  R.  R.  Co.  r. 
Unidiii,  0  Kxeli.  .S14;  Hull  v.  Piekers- 
piU,  I  ]5;ill  &  B.  282;  Harrison  r. 
Mit.li.ll,  1:J  La.  Ann.  MO;  Collins /•. 
W'augKiKT,  Brcese,  20;  Buveriilgo  v. 
liawM.ii,  ni  111  504;  AUre.l  v.  Bray, 
41  Mn,  .184;  97  Ain.  Dec.  2S:i;  Gruutl 
n  Van  Vlock,  09  111.  479;  Vandorbilt 


V.  Turnpike  Co.,  2  N.  Y.  470;  .")!  Am. 
Dec.  315;  Brainenl  *'.  DunMiiiu,  ."ON. 
Y.  211;  Wiggins  ;•.  UiiiLed  States,  .3 
Ct.  Claims,  412.  See  Buron  r.  Den- 
man,  2  E.xch.  107. 

*  See  Division  I.,  Agency  — Ilatitica- 
tion,  <())f.e. 

'■'  Hyde  r.  Cooper,  20  Vt.  552;Lewia 
V.  Read,  13  Meos.  >t  W.   8:!4. 

«  Buttrick  i\  Lowell,  1  Allen,  172; 
79  Am.  Dec.  721;  Eastern  Counties  R. 
R.  Co.  r.  Broom,  0  E.^ceh.  311,  Wool- 
en?'.  Wright,  1  lliul.  &  C.  5.j4. 

'Roe?'.  R.  R.  Co.,  7  Exch.  36;  7 
Eng.  L.  &  Eq.  540. 


■Ml 


§1042 


PERSONAL  WRONGS. 


1770 


liable  in  trespass,  and  that  the  conductor  of  the  train,  present 
and  directing  or  consenting  to  the  acts  of  the  brakcnian,  was 
also  liable:  Drnle  v.  Kiely,  93  Pa.  St.  492.  The  owner  of  a  lot 
cairsed  the  erection  of  a  building  thereon.  He  furnished  the 
material;  A  was  architect  and  superintendent,  and  buyer  of 
the  material  as  the  owner's  agent,  and  B  was  the  mason  and 
builder.  The  materials  were  so  inferior,  and  the  construction 
so  poor,  that  the  wall  fell,  injuring  the  house  of  an  adjoining 
lot-owner.  Held,  that  all  three  were  liable  for  the  damage: 
Jarvis  v.  Barter,  52  N.  Y.  Sup.  Ct.  109.  Three  persons  at  mid- 
night demanded  admittance  to  a  restaurant  which  was  closed 
for  the  night,  bu*  had  a  light  burning  within.  One  of  them 
went  around  to  .  ..ido  door,  entered,  and  told  the  keeper  that 
one  of  tlie  others  wanted  to  come  in.  The  others  being  at  the 
front  door,  one  said  to  the  other,  "Fire  a  salute."  The  one 
addressed  fired  a  pistol,  and  the  ball  went  through  tlie  door, 
and  severely  wounded  the  keeper.  There  was  an  ordinance 
prohibiting  the  discharge  of  fire-arms  in  the  street.  Held,  that 
the  person  firing,  and  the  one  advising  the  firing,  were  responsi- 
ble: Dain'jrrfidd  v.  Thomjimn,  83  Gratt.  13G;  36  Am.  Rep.  783. 
Several  persons  wore  engaged  in  playing  a  game  of  ball  in  the 
public  highway,  and  a  traveler  lawfully  passing  thereon  was 
accidentally  struck  by  the  ball.  Held,  that  all  the  persons  so 
engaged  wure  liable  in  trespass,  provided  that,  from  the  width 
of  the  road,  and  the  number  of  persons  usually  passing  thereon, 
for  the  ordinary  purposes  of  travel,  the  game  was  of  such  a 
character  as  to  be  likely  to  endanger  the  safety  of  travelers 
and  passengers,  and  that  the  individual  by  whom  the  ball  was 
throuri  was  acting  in  the  usual  manner  of  persons  engaged  in 
such  game:  Votdranfh  v.  Moal;  1  Cush.  453;  48  Am.  Dec.  613. 
A  prisoner,  inider  arrest  upon  a  charge  of  larceny,  was  taken 
from  his  place  of  confinement  to  the  outskirts  of  the  town  in 
the  night-time.  I)y  those  having  the  prisoner  in  eharge,  and  one 
of  the  number,  placing  his  hand  upon  the  prisoner's  shoulder, 
produced  a  rope,  and  required  him  to  confess  the  larceny. 
Held,  that  such  persons  were  all  liable  in  damages:  SlaUimjs 
V.  Owens,  51  111.  92. 

§  1042.  Liability  of  Plaintiff  in  Writ  for  Acts  of  Offi- 
cers. -  A  person  placing  legal  process  in  the  hands  of 
the  ]  -oper  officer  for  service  is  not  liable  for  the  otHcor's 
act  iu  following  the  command  of  the  writ,  provided  it  is 
properly  issued  and  by  the  proper  authority;  ^  nor  for  the 

^  Coolcy  on  Torts,  129.     As  to  li;i-    nnte,  Division  I.,  title  Principal  and 
kjlity  of  attocui-ya  iu  ^ach.  cases,  aei2    Agent —  Attorney  and  Cliuut, 


1770 


1771 


TORTS   IN   GENERAL. 


§  1042 


present 
lan,  wiiB 
of  a  lot 
shed  the 
niyer  of 
ison  and 
struction 
idjoining 
damage: 
s  at  niid- 
cas  closed 

of  them 
eper  that 
ig  nt  the 

The  one 
the  door, 
ordinance 
Held,  that 
)  responsi- 

Rcp.  783. 
ball  in  the 
lereon  was 
persons  so 

the  width 
jig  thereon, 

of  such  a 
travelers 
le  ball  was 
gaged  in 
Dec.  613. 

was  taken 

10  town  in 

;e,  and  one 
i^houlder, 

.0   larceny. 
Slall'unjs 


;t3  of  Offi- 
hands  of 
.0  officer's 
ridcd  it  is 

"lor  for  the 

Principal  aud 
lieut. 


act  of  the  officer  in  going  beyond  the  authority  given  by 
the  writ  is  the  party  responsible,  unless  he  advised  and  as- 
sisted the  officer  in  such  act.'  But  the  party  is  rc&ponsible 
where  the  officer  has  departed  from  the  command  of  his 
writ,  or  from  liis  instructions,  if  he  has  afterwards  ap- 
proved what  was  done,  and  has  taken,  or  is  seeking 
to  take,  a  benefit  from  it."  But  where  the  plaintiff 
receives  only  such  benefits  as  he  would  have  been  en- 
titled to  under  a  lawful  service  of  the  writ,  he  cannot, 
from  this  fact  alone,  be  held  to  be  a  participant  in  the 
ofiicer's  trespasses.^     Trespass  lies  against  a  plaintiff  who 


'  Avuiill  ?'.  Williams,  4  Denio,  295; 
47  Am.  l)c<i-  ~'y~;  Hytlo  v.  Cooper,  2(i 
yt.  iVi-J;  'laylor?'.  Trask,  7  Cow.  249; 
Chapiiiaii  r.  Douglass,  5  Daly,  244 ^ 
Aljbott  ?•.  Kiinhall,  19  Vt.  551;  47 
Am.  l>i^^o.  70S;  Wilson  v.  Tumman,  6 
Miiii.  &  ^'-  241;  I'riucetou  Bank  i\  Gib- 
son, •-'()  N.  J.  L.  138;  Berry  v.  Kelly, 
4Rol).  (N.  Y.)  lOG. 

'•«  Cooleyon  Torts,  130;  citing  Tomp- 
kiu-i  '■•  Hallo,  3  Wend.  40C;  Root  v. 
ClKindkr,  10  Wend.  HI;  25  Am.  Dec. 
540;  Allen  v.  Crary,  10  Wend.  349; 
25  Am.  Dec.  5(JG;  Davia  v.  Ncwkirk, 
5  Denio,  94;  Ball  v.  Loomis,  29  N.  Y. 
41'J;  Leach  v.  Francis,  41  Vt.  G70; 
Htrouil  r.  Humble,  2  La.  Ann.  930; 
Bouiul  r.  Dunn,  2S  N.J.  L.  153;  Knight 
V.  Nelson,  117  Mass.  458;  Wetzcll  v. 
Waters,  18  Mo.  390;  Nelson  v.  Cook, 
17  111-  443;  Syndackcr  v.  Brossc,  51 
111.  ,">.')7;  Bevcridge  v.  Rawsou,  51  111. 
f)04;  Deal  r.  Bogue,  20  Pa.  St.  228; 
57  Am.  Dec.  702. 

''  Lewi.sr.  Reed,  ISMees.  &  W.  834; 
Hyde  r.  Cooper,  2G  Vt.  552.  In  this 
case  an  oHieer  had  proceeded  to  sell 
proptily  on  execution  without  suffi- 
cient notice.  Tlio  plaintiff  in  the  ex- 
ecutidii  was  sued  in  tre.spas3  as  a  par- 
ticipant in  the  wrong.  It  appeared 
that  liLiDio  the  sale  he  had  expressed 
the  o[)iiiion  that  the  notice  was  suffi- 
cient, and  also  that  he  received  the 
money  on  execution.  Said  Redlield, 
C.  J.:  "As  a  general  rule,  perhaps, 
■wliLi-e  the  mistake  is  on"  of  fact,  and 
such  as  makes  the  officer  a  trespasser, 
aud  the  party,  knowing  all  the  facta, 
consents  to  take  the  avails  of  a  sale, 
or  where  ho  counseled  the  very  act 


which  creates  the  liability  of  the  offi- 
cer, he  is  implicated  to  the  same  ex- 
tent as  the  officer.  But  when  the 
party  does  not  direct  or  control  the 
course  of  the  officer,  but  require.^  him 
to  proceed  at  his  peril,  and  the  officer 
makes  a  mistake  of  law  in  ju<lging  of 
his  official  duty,  whereby  he  becomes 
a  trespasser,  even  by  relation,  the 
party  is  not  affected  by  it,  even  when 
he  receives  money,  which  is  the  result 
of  such  irregularity,  although  ho  was 
aware  of  the  course  pursued  by  the 
oiriccr.  He  is  not  liable  unless  he  con- 
sents to  the  officer's  course,  or  subse- 
quently adopts  it.  jAnd  if  he  docs 
that,  he  cannot  maintain  an  action 
against  the  officer  for  doing  the  act, 
and  the  consequence  would  be,  that  if 
receiving  the  avails  of  a  sale  on  exec- 
ution were  to  bo  regarded  in  all  cases 
as  amounting  to  a  ratilication  of  the 
conduct  of  the  officer  in  the  sale,  it 
must  preclude  the  creditor  fron\  all 
suits  against  the  officer  o!i  that  ac- 
count; which  has  never  been  so  re- 
garded. The  ]'arty  may  ahvays  tako 
money  which  the  officer  informs  him 
he  has  legally  collected,  without  as- 
suming the  responsibility  of  indors- 
ing the  perfect  legality  of  the  eutiro 
detail  of  the  officer's  official  conduct 
in  the  matter.  For  if  the  officer  is 
compelled  to  refund  to  the  debtor,  on 
account  of  his  irregularity  of  proce- 
dure, that  will  not  affect  the  right  of 
the  creditor  to  retain  the  money.  He 
is  still  entitled  to  retain  the  money 
against  the  officer.  And  the  party 
cannot  claim  the  money  of  the  cred- 
itor  without  thereby   affirmiug    the 


wmm 


§  1043 


PERSONAL   WRONGS. 


1772 


directs  an  officer  to  detain  property,  and  indemnifies 
him.^  A  plaintiff  directing,  and  a  constable  making,  a 
levy  and  sale,  against  the  consent  of  the  defendant,  of  corn 
exempt  from  execution,  are  trespassers,  whether  they  for- 
cibly took  and  carried  away  the  corn  or  not."  Where 
cxecntiou  on  a  void  judgment  has  been  levied  by  the 
sheriff  by  direction  of  the  judgment  creditors,  they  arc 
all  joint  trespassers  and  liable  for  the  property  seized.^ 

§  1043.    Liability  of  Officer  for  Acts  of  Deputies.— 

Where  an  oflicer  is  authorized  by  law  to  appoint  a  deputy, 
he  is  liable  for  his  acts  done  under  color  of  his  appoint- 
ment.' A  sheriff,  for  example,  is  liable  to  the  plaintiff  in 
the  writ  for  his  deputy's  misconduct  or  neglect  which 
injures  him.'''  So  he  is  also  liable  for  the  deputy's  mis- 
feasances and  non-feasances  which  injure  the  defendant," 
or  any  third  person.'^  The  fact  that  the  sheriff  is  respon- 
sible does  not  relieve  the  deputy,  who  is  equally  liable 
with  the  sheriff  for  all  his  positive  misfeasances;®  but 
when  a  mere  neglect  to  perform  an  official  duty  is  coni- 


salo.  So  that  the  creditor's  accepting 
the  amount  of  inonoy  for  which  the 
property  i.ii  «ohl  is  no  more  a  ratiliea- 
tiou  of  the  coiuluct  of  the  offii'cr  than 
if  he  tooiv  tho  money  of  the  ofTiccr  on 
any  othci-  liiliility.  The  money  is 
the  ollicei-'s,  -whether  he  was  a  tres- 

fiasser  or  not,  ami  he  in,  at  all  events, 
ialjle  to  tho  creditor.  If  the  sale  was 
irregular,  tluit  is  his  loss,  aiul  he 
jnu.it  still  pay  the  creditor;  and  ac- 
cepting t!ie  money  is  but  taking  pay 
for  tlio  oiiicerVj  liability  to  tho  creditor 
for  his  dftuulfc  in  tho  sak  if  it  was 
irregular.  So  that  iu  any  view  of  the 
case  there  is  no  ground  for  implicat- 
ing tlie  defi;ndant." 

iRoot  r.  Chandler,  10  Wend.  110; 
23  Am.  Dec.  .'jK);  Lovcjoy  r.  Murray, 
3  Wall.  ];  Murray  v.  Ezell,  3  Ala. 
14S;  Herring  v.  Hopiiock,  15  N.  Y. 
40!);  Pozzoni  v.  Henderson,  2  E.  D. 
Smith,  14G. 

-  Atkinson  v.  Gateher,  23  Ark.  lOL 
^  Shaw  V.  Rowknd,  32  Kan.  154. 


*  Cooley  on  Torts,  132. 

■''  Blunt  V.  Sheppard,  1  ]Mo.  219; 
Marshall  r.  Hosnier,  4  Mass.  GO;  Esty 
I'.  Chandler,  7  Mass.  404;  Mclntyre 
V.  Truml)uli,  7  .Jolins.  3.");  CurLis  i: 
B'ay,  37  Barb.  C4;  Pond  v.  Leman,  4.j 
Barb.  152;  Mason  v.  Ide,  30  Vt.  OUT; 
Seaver  2\  Pierce,  42  Vt.  32.");  Si,i;ii[)- 
son  V.  Pierce,  42  Vt.  3.34;  Whitney  c. 
Farrar,  51  ^Ic.  418;  Ileudinger  v. 
Weyker,  22  Wis.  383;  Clute  v.  Good. 
ell,  2  McLean,  103. 

"  Woodgato  V.  Knatchbull,  2  Term 
Rep.  14S;(rrunnell  v.  Phillips,  1  Muss. 
52i»;  Knowltou  v.  Bartlett,  1  I'ick. 
270;  Waterburyr.  Wcstervclt,  UN.  Y. 
598;  King  r.  Orser,  4  Duer,  4.31. 

'  Aekworth  r.  Kcmpc,  Doug.  41; 
Campbell  v.  Phelps,  17  Ma.ss.  244; 
Nortoun  Nye,  50  Me.  211.  But  .sue 
Harrington  ?■.  Ward,  9  Mass.  2'il. 

*'  Purrington  r.  Loriug,  7  M;iss.  38S; 
Ross  V.  Philbriek,  39  Me.  29;  Rum- 
linger  V.  W^eyker,  22  Wis.  383. 


1772 


1773 


TORTS    IN    GENERAL. 


§  1044 


anifics 
iing,  a 
:)f  corn 
icy  for- 
Whero 
by  the 
hey  arc 
Lzcd.^ 

uties. — 

deputy, 
appoint- 
\intilf  ill 
;t   which 
ty's  mis- 
feiuhuit,"^ 
s  rospou- 
11  y  liable 
ices;®   but 
,y  is  com- 


Mo.    219; 

ass.  (30;  Esty 
I;  Mclntyre 
3.-);  Curtis  *'. 
r  Lftiuin,  4.') 
;,  no  Vt.  O'.t"; 

;  Whitney  c. 
.loiidiuger  r. 
lute  V.  Uooil- 

ijull,  2  Term 

Ictt,    1    TkU. 
rvclt,  y  N.  Y. 
jier,  4;U. 
Uouy.   41; 
Mas*.   "214; 
|211.     But  sue 
[ass.  'J.-.l. 

7  ]M:iss.  :^88; 
lie.  29;  Hum- 
Is.  383. 


plained  of,  only  the  sheriff  can  bo  sued,  because  only  upon 
him  does  the  official  duty  rest.' 

g  1044,  Intentional  Wrong-doers  —  Liable  Jointly  and 
Severally. —  Where  several  persons  unite  in  an  act  which 
constitutes  a  wrong  to  another,  intending  at  the  time  to 
commit  it,  or  doing  it  under  circumstances  which  fairly 
charge  them  with  intending  the  consequences  which  fol- 
low, they  are  all  jointly  liable  therefor.^  And  the  party 
injured  is  at  liberty  to  pur.suo  any  one  of  them  severally, 
or  any  number  less  than  the  whole,  and  to  enforce  his 
remedy,  regardless  of  the  participation  of  the  others.^  He 
may  even  bring  different  forms  of  action  against  the  dif- 
ferent participants  in  the  wrong;  as  trespass  against  one, 
trover  against  another,  and  so  on.*  In  trespass  by  A 
against  B  and  C,  A,  on  making  a  case  for  exemplary 
damages  against  B,  and  not  against  C,  may  dismiss  as  to 
C  and  recover  against  B.^     Where  an  action  is  for  joint 


'  Cameron  v.  Reynolds,  Cowp.  403; 

Hutchinson  v.  Pai'klnirst,  1  Aik.  L'5S; 
Buck  V.  Ashley,  37  Vt.  47.");  Armi- 
steael  v.  Marks,  1  Wasli.  (Vo..)  oJ-j; 
Rose  V.  Lane,  3  Humph.  218;  Pad- 
dock i\  Cameron,  8  Cow.  212.  Lut 
sec  Drapei-  v.  Arnold,  12  Mass.  449; 
Tuttlo  r.  Love,  7  Johns.  470;  Abbott 
r,  Kimball,  19  Vt.  551;  23  Am.  Dec. 
i'2. 

"^Cooley  on  Torts,  133;  Miller  v. 
I  Fenton,  11  Paige,  IS;  Kiiicherbackcr 
r.  Colver,  8  Cow.  Ill;  Wheeler  i\ 
hVorcostcr,  10  Allen,  591;  Brown  v. 
1  Perkins,  1  Allen,  89;  Barden  v.  Fclch, 
Mass.  154;  Nelson  r.  Cook,  17 
I  111.  443;  Johnson  v.  Barber,  10  111. 
U'.T);  50  Am.  Dec.  41G;  Turner  v. 
iHitclicock,  20  Iowa,  310;  Woodbridgo 
li'.  Connor,  49  Me.  353;  77  Am.  Dec. 
|2tll^;  Pago  r.  Freeman,  19  Mo.  421; 
IWright  V.  Lathrop,  2  Ohio,  33;  15 
Llni.  Dec.  529;  McGeheo  v.  Sluifer,  15 
ITl'X.  198;  Knott  v.  Cunningham,  2 
ISaoed,  204;  McManuus  v.  Lee,  43  Mo. 
\%;  97  Am.  Dec.  380;  Lewis  v.  Johns, 
[  Cal.  G29;  Shepherd  v.  McQuilkiu,  2 
PV,  Va.  90. 
'  Cooley  on  Torts,  184;  Farobrother 
Aualey,    1  Camp.  _343j  Wilson  v. 


Milner,  2  Camp.  452;  Pitcher  r.  Bai- 
I'jy,  8  East,  171;  Booth  v.  Hodgson,  6 
Term  Rep  405;  Merry  weather  ?•.  Nixan, 
8Tcr:n  Rep.  18G;  Vosc  r?  Grant,  15 
Mass.  505;  W'heeler?\  Worcester,  10 
Allen,591;  Campbell  r.  Phelps,  1  Pick. 
GJ;  11  Am.  Dec.  139;  Wiliordr.  Grant, 
Kirby,  114;  Thweattv.  Jones,  1  Rand. 
32S;  10  Am.  Dec.  538;  Dupuy  v. 
Johuson,  1  Bibl),  5G2;  Acheson  r.  Mil- 
ler, 18  Ohio,  1;  Wallace  v.  Miller, 
15  La.  Ann.  449;  Moore  v.  Apple- 
ton.  26  Ala.  C33;  Rhea  v.  White,  3 
Head,  121;  Murphy  v.  Wilson,  44  Mo. 
313;  100  Am.  Dec.  290;  .Silvers  v. 
Nerdliuger,  30  Ind.  53;  Bishop  v.  Ely, 
9  Johns.  294;  Williams  r.  Sheldon,  10 
Wend.  C54;  Mayne  r.  Griswold,  3 
iSandf.  4G3;  Matthews  v.  Menedger,  2 
Mich.  145;  Guille  r>.  Swan,  19  Johns. 
3S1;  10  Am.  Dec.  234;  Livingstone. 
Bishop,  1  Johns.  290;  3  Am.  Dec.  330; 
Floyd  V.  Browne,  1  Rawle,  125;  18 
Am.  Dec.  G02;  Hawkins  r.  Hatton,  1 
Nott  &  McC.  318;  9  Am.  Dec.  700; 
Bloss  V.  Plymale,  3  W.  Va.  393;  ICO 
Am.  Dec.  752;  and  see  note  t.  Kirk- 
wood  V.  Miller,  73  Am.  Dec.  137   149. 

♦  Du  Bo30  V.  Marx,  52  Ala.  506. 

*  Pardridgo  V.  Brady,  7  111.  App.  639. 


§1044 


PERSONAL   WRONGS. 


1774 


trespass,  ono  clefoudaiit  may  bo  convicted  for  acts  dono 
alone  i\H  well  as  for  those  dono  in  concert  with  others.'  A 
verdict  in  trespass  against  all  the  defendants  jointly  can- 
not be  snstained  on  evidence  which  fails  to  implicate  all." 
In  a  joint  action  of  trespass  against  several  defendants, 
it  is  coni|»etent  to  show  a  provocation  received  by  only 
one  of  them."  After  suit  is  brought,  there  can  be  no 
apportionment  of  responsibility,  whether  the  suit  bo 
against  one  or  against  all.  Each  is  responsible  for  the 
whole,  and  the  degree  of  his  blameableness  as  betwcei). 
liimself  and  his  associates  is  immaterial.^  AVhen  tiro 
contributory  action  of  all  accomplishes  a  particular  re- 
suit,  it  is  unimportant  to  the  party  injured  that  one  con- 
tributed much  to  the  injury  and  another  little;  the  ono 
least  guilty  is  liable  for  all,  because  he  aided  in  accom- 
plishing all.'"'  The  judgment  is  for  a  single  sum  against 
all  the  parties  proved  guilty  of  the  tort."  Damages  fur 
separate  trespass  of  one  of  two  defendants  cannot  be 
included  in  a  joint  judgment  against  both.^  Bringing 
suit  against  one  or  more  of  the  wrong-doers  is  no  bar  to 
a  now  suit  against  the  others.®  Nor  is  a  covenant  not  to 
sue."  Nor  is  tho  obtaining  of  a  judgment  until  satisfac- 
tion is  made.** 


*  Blancharcl  v.  Burbank,  16  lU.  App. 
375. 

''  Grusing  v.  Shannon,  2  111.  App. 
325 

»  Davis?'.  Franko,  33  Gratt.  413. 

*Cooley  on  Torts,  135;  Bell  v. 
Morrison,  27  Miss.  (38.  In  actions 
against  several  defendants  for  their 
joint  trespass,  damages  may  bo  sev- 
ered and  apportioned  according  to  tho 
degree  and  nature  of  the  offense  com- 
mitted by  each:  Smith  v.  Singleton, 
2  McMull.  184;  39  Am.  Dec.   122. 

''  Coolcy  on  Torts,  135;  Berry  v. 
Fletcher,  1  Dill.  07;  Kirkwood  v. 
Miller,  5  Snecd,  455;  73  Am.  Dec.  134. 

*Cooley  on  Torts,  130. 

T  Synionds  v.  Hall,  37  Me.  354;  59 
Am.  Dec.  53. 

8  Cooley  ou  Torts,  136. 


oSnow  V.  Chandler,  10  N.  H.  92;  34 
Am.  Dec.  140. 

10  Murray  v.  Lovejoy,  2  Cliff.  191;  3 
Wall.  1 ;  Livingston  r.  Bishop,  1  Johns. 
290;  3  A:.i.  Dec.  3.30;  Elliott  v.  Por- 
ter, 5  Dana,  299;  Sharp  r.  Gray,  5  B. 
Mon.  4;  United  Society  r.  Under- 
wood, 11  Bush,  205;  21  Am.  Rep.  214; 
Elliott  V.  Hayden,  104  Mass.  ISO; 
Knight  V.  Nelson,  117  Mass.  4,kS; 
Stone  V.  Dickinson,  5  Allen,  29;  SI 
Am.  Dec.  727;  Brown  v.  Cambridge, 
3  Allen,  -^4;  Griffio  v.  McClung,  5 
W.  Va.  lol;  Morgan  v.  Chester,  4 
Conn.  387;  Ayer  v.  Ashmead,  31  Conn, 
447;  83  Am.  Dec.  154;  Sheldon  r. 
Kibbe,  3  Conn.  214;  8  Am.  Deo. 
170;  Wright  v.  Lathrop,  2  Ohio,  31!; 
15  Am.  Dec.  529;  Sanderson  v.  Cald- 
well,   2  Aik.    lyo;    Stewart  v.  Mar> 


1774 


TORTS   IN   GENERAL. 


§  1044 


,cts  dono 
icrs.'  A 
iitly  ciui- 
lic'iito  iill.'- 
fVndauts, 
I  l)y  only 
lu   be    no 

suit    bo 
0   for  tbe 
i  betwccu 
Vheu    tiro 
icultir  I'o- 
t  one  con- 
?;  the  ouo 
in  accom- 
m  against 
in  ages  fur 
cannot    bo 

Bringing 
no  bar  to 
ant  not  to 
il  satisfac- 

N.  H.  92;  34 

1 2  Cliff.  101;  3 
inhop,  1  Johns. 
[Elliott  V.  Tor- 

r.  (!ray,  5  15. 

ty    r.  Under- 

Am.  Ilcp.  214; 
Mass.  ISO; 
,.  Mass.  458; 
JAllon,  29;  81 
[u.  Cambridge, 
McClung,  5 
\v.  Chester,  4 
Ineail,  31  Conn. 

[;    Sheldon    !■• 
8   Am.    Dec. 

,  2  Ohio,   33; 

krsoa  v.  CaW- 

twart  V.  Mar* 


In  Massachusetts  it  has  been  held  that  judgment  in 
r('})]('vin  against  one  of  two  joint  takers  for  a  portion  of 
clialtels  taken  and  nominal  damages,  under  which  all  the 
property  is  recovered,  some  of  it,  however,  in  a  damaged 
condition,  is  a  bar  to  a  subsequent  action  ngainst  both 
takers  for  further  damages  for  the  taking  and  detention.' 
And  if  some  of  the  defendants  should  make  default,  and 
an  interlocutory  judgment  bo  rendered  against  them,  it 
is  erroneous  to  render  judgment  against  those  who 
appear  and  contest  the  action,  without  embracing  the 
defaulting  defendants.^  Accepting  satisfaction  from  one 
is  a  bar  as  to  all;''  and  a  release  of  one  is  a  release  of  all;'* 
though  the  release  stipulates  that  the  others  shall  not  bo 
discharged.^  A  partial  payment  made  by  a  co-trespasser 
in  satisfaction  of  the  damages  sustained  by  reason  of  Iho 
joint  trespass  inures  to  the  benefit  of  the  other,  and  in  an 
action  against  the  latter  must  be  considered  by  the  jury 
in  determining  the  amount  of  their  verdict."  If  plaintiff 
sues  one  joint  wrong-doer  for  less  than  the  amount  which 


tin,  10  Vt.  397;  Turner  v.  Hitch- 
cock, 20  Iowa,  oJO;  McGcliee  v.  Slia- 
fer,  15  Tex.  li)8;  Knott  r.  Cun- 
iiingliam,  2  Snued,  204;  Christian  v. 
Hoover,  0  Yerf(.  50.5;  Suiith  r.  Single- 
ton, 2  McMull.  184;  39  Am.  Dec. 
122;  Blaiiu  /-.  Crocheron,  19  Ala.  (i47; 
54  Am.  Dec.  203;  Callard  r.  R.  R. 
Co.,  (i  Fed.  Rep.  240;  Du  Ro.io  r.  Marx, 
52  All.  500;  Jones  r.  Lowell,  35  Me. 
541;  Page  v.  Freeman,  19  Mo.  421; 
Marsh  v.  Berry,  7  Cow.  .'J4S;  Floyd 
V.  Browtie,  1  Rawle,  125;  18  Am.  Dec. 
002;  Hawkins  V.  Hatton,  1  Nott&  McC. 
818;  9  Am.  Dec.  700.  In  England  it  is 
held  that  recovery  of  judgment  against 
one  wrong-doer  is  a  bar  to  a  suit 
against  the  others:  Brown  r.  Wootton, 
Cro.  Jac.  73;  Buckland  w.  Johnsoa,  15 
Com.  B.  145;  King  r.  Hoare,  13Moes. 
&  W.  404;  Brinsmead  v.  Harrison, 
L.  R.  t)  Com.  P.  584.  And  this  rule 
has  been  followed  in  a  few  cases  in 
tliis  country:  Wilkes  o.  Jackson,  2  Hen. 
&  M.  355;  Hunt  v.  Bates,  7  R.  I.  217; 
82  Am.  Dec.  592.  In  some  states  tak- 
ing out  execution  on  one  judgment 


is  a  discharge  of  -the  other:  Allen  v, 
Wheatly,  50  lad.  278;  (iolding  v. 
Hall,  9  Tort.  169;  Blann  r.  Crocheron, 
20  Ala.  320;  Boardmau  r.  Acer,  13 
Mich.  77;  87  Am.  Dee.  7.''0;  Pago  r. 
Freeman,  19  Mo.  421;  White  r.  Phil- 
brick,  5  Me.  147;  17  Am.  Dec.  214; 
Fleming  v.  McDonald,  50  Ind.  278; 
19  Am.  Rep.  711. 

'  Bennett  v.  Hood,  1  Allen,  47;  79 
Am.  Dec.  705. 

•'  Bivina  •('.  McElroy,  11  Ark.  23;  52 
Am.  Dec.  258. 

^  Turner  t:  Hitchcock,  20  Iowa,  310; 
Aycr  I'.  Ashmcad,  .11  Coun.  447;  83 
Am.  Dec.  154;  McUeheo  r.  Shafer, 
15  Tex.  198;  Lord  r.  Tiffany,  98  N. 
Y.  412;  50  Am.  Rep.  089;  see  Fitz- 
gerald  i'.  Smith,  1  Ind.  310.  Settling 
with  one  not  liable  is  no  bar:  Turner 
V.  Hitciicock,  20  Iowa,  310. 

*  Gilpatrick  v.  Hunter,  24  Me.  18; 
41  Am.  Dec.  370. 

'■>  Ellis  V.  Bitzer,  2  Ohio,  89;  15  . 
Dec.  534. 

«  Snow  r.  Chandler,  10  N.  H.  92; 
34  Am.  Dec.  140. 


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§  1045 


PERSONAL   WR0NG8L 


1776 


he  might  have  recovered,  and  takes  a  judgment  which  is 
paid,  lie  cannot  sue  another  of  the  joint  wrong-doers.' 

Illistuations.  —  A  huntsman  trespasses  upon  the  plaintiflF's 
grounda  with  his  dogs,  followed  by  a  great  number  of  j)coplo 
on  foot  and  on  horseback,  who  trample  down  and  destroy  crops. 
The  huntsman  is  responsible  for  the  whole  injury:  Hume  v. 
Oldacir,  1  Stark.  351.  A  convict  in  the  penitentiary  received 
injuries  while  employed  by  contractors,  under  charge  of  the 
penitentiary  oflicers,  and  he  presented  to  the  legislature  a 
petition  for  relief,  and  a  sum  was  granted  to  and  received  by 
him.  Held,  that  this  was  a  bar  to  any  suit  against  the  con- 
tractors, as  the  relief  received  from  the  state  implied  that  the 
state  v,as  a  joint  wrong-doer:  Mctz  v.  Sonle,  40  Iowa,  236.  The 
plairii''  in  nn  action  against  several  joint  tort-feasers,  executed 
to  o:  •  I  .  1}  em  a  release  under  seal,  acknowledging  full  satis- 
faction kr  i  he  tort,  but  reserving  his  claim  against  the  others. 
ITchI,  th'it  tbo  release  inured  to  the  benefit  of  all  the  defendants, 
and  tlj;>*.  the  reservation  was  inoperative:  Gunthcr  v.  Lee, 
45  ^1(1.  (iu;  ['A  Am.  Rep.  504.  Plaintiff"  recovered  judgment  in 
an  action  of  tort  against  one  who  was  jointly  liable  with  defend- 
ant, which  judgment  was  satisfied  in  part,  and  afterwards 
brought  this  action  for  the  same  cause.  Held,  1.  That  to  con- 
stitute the  first  judgment  a  bar  to  this  action,  it  must  have 
been  fully  satisfied;  and  2.  That  defendant  having  pleaded  the 
firi '.  judgment  in  bar,  both  parties  were  concluded  by  it  as  to 
the  mcasuroof  recovery  in  this  action:  United  Society  of  Shakers 
V.  Underwood,  11  Bush,  265;  21  Am.  Rep.  214.  Plaintiff' brought 
separate  actions  for  a  joint  trespass.  Defendants  in  one  of 
these  actions  paid  the  amount  of  the  judgment  into  court, 
pending  the  other  action.  The  clerk  entered  a  satisfaction  of 
record,  but  plaintiff"  refused  to  receive  the  money.  Held,  that 
he  could  not  bo  deprived,  without  his  consent,  of  the  right  to 
make  his  election:  Power  v.  Laker,  27  Fed.  Rep.  396. 

§  1045.  No  Contribution  among  Wrong-doers — Excep- 
tions.—  The  general  rule  is,  that  there  can  bo  no  contribu- 
tion between  wrong-doers.^  If  a  person  maintains  a  hatch- 


'  Westbrook  v.  Mize,  35  Kan.  299. 

*  Mcrryweathcr  v.  Nixan,  8  Term 
Rep.  1S(I;  ArinstroujjCo.  v.  Clarion  Co., 
66  Pa.  St.  218;  5  Am.  Rep.  368;  Phil- 
adelpliia  r.  Collius,  68  Pa.  St.  106; 
Stone  ('.  Hooker,  9  Cow.  154;  Coventry 
r.  Barton,  17  Johns.  142;  Miller  v. 
Fentou,  11  Paige,  18;  Rhea  r.  lAHiite, 
3  Head,   121;   Spalding  v.  Oakes,  42 


Vt.  343;  Percy  v.  Clary,  32  M.l.  245; 
Pearson  ?•.  Skelton,  I  Mees.  &  \V.  504; 
Wooley  V.  Batte,  2  Car.  &  P.  417;  Ad- 
amson  v.  Jarvis,  4  Bing.  00;  C'olburn 
V.  Patmore,  1  Cromp.  M.  &  R.  73; 
Mitchell  r.  Cotkburne,  2  H.  Black. 
379;  Cumpstonv.  Lambert,  18  Ohio,  81; 
61  Am.  Dec.  442;  Selzr.  Unna,  1  Biss. 
521;  6  Wall.  327;  Mitmiav.  Johnson, 


1777 


TOETS   IN   GENERAL. 


§  1045 


245; 
504; 
7;  A(l- 
Ibiini 
II.  73; 
Black, 
io,  SI; 
1  Bis8. 
uson, 


way  in  his  sidewalk  unsafe  for  travelers,  and  another  takes 
and  leaves  thecoveroff,  andatraveler  being  injured  thereby 
recovers  damages  against  the  occupant, the  latter  cannotre- 
cover  indemnity  of  the  intermeddler/  One  of  the  parties 
to  a  joint  trespass  is  not  entitled,  by  satisfyinj^  the  claims 
of  the  injured  person,  to  take  from  him  an  assignment  of 
his  right  of  action  for  the  injury,  and  sue  his  associates 
for  damages  in  full, either  in  his  own  name  or  in  that  of  his 
assignor.^  One  who  has  fraudulently  suffered  a  judgment 
to  be  entered  against  him  as  administrator  has  no  stand- 
ing in  court  to  compel  his  confederates  in  the  fraud  to 
account.'  But  there  may  be  contribution  bctAvoen  fraudu- 
lent grantees  of  land,  when  the  land  conveyed  to  one  of 
them  is  taken  to  pay  the  grantor's  debts,  —  such  contri- 
bution to  be  adjusted  according  to  existing  equities  be- 
tween the  several  grantees.'*  Wliere  the  party  who  has 
been  called  on  to  respond  in  damages  is  u  Avrong-door 
only  by  relation,  he  may  recover  indemnity  from  the  real 
wrong-doer.^  Thus  a  carrier  who  has  been  corapelled  to 
pay  damages  for  any  injury  caused  by  the  carelessness  of 
a  servant  may  recover  indemnity  from  that  servant." 
"Where  the  owner  or  occupant  of  premises  creates  a  nui- 
sance in  the  street  or  on  the  sidewalk  adjoining  the  same, 
without  the  authority  of  the  municipal  authorities,  either 
express  or  implied,  and  the  city  is  compelled  to  pay  dam- 
ages to  a  person  for  a  personal  injury  caused  by  the  same, 
the  author  of  such  a  nuisance  will  be  responsible  to  the 
city  for  the  damages  so  paid  by  it.^  Where  an  officer  is 
induced,  by  the  false  statements  of  another  as  to  the  own- 

Dickiason,    38   Mich. 


1  Duvall,  171;  Churchill  r.  Holt,  131 
Mass.  G7;  41  Am.  Rep.  191;  Lowell  v. 
R.  R.  Co.,  23  Pick.  24;  34  Am.  Dec. 
33;  Jacobs  t'.  Pollard,  10  Cush.  287;  57 
Am.  Dec,  105;  Barid  v.  Midvale  Steel 
Works,  12  Phila.  255;  Nichols  v.  Now- 
ling,  82  Ind.  488;  Herr  v.  Barber,  2 
Mackey,  545;  Becker  v.  Farwell,  25  IlL 
App.  432. 

^  Churchill  v.  Holt,  J31  Majw.   67; 
41  Am,  Bep.  191. 
112 


*  Upham   V. 
338 

»  Sherner  v.  Spear.  92  N.  C.  148. 

*  Janvrin  v.  Curtis,  G3  N.  H.  312. 

*  Lowell  V.  R.  R.  Co. ,  23  Pick.  24;  34 
Am.  Dec.  33. 

"  See  Division  I.,  Agency  —  Master 
and  Servant. 

'  Gridley  v.  City  of  Bloomington,  68 
111.  47;  Lowell  r.  R.  K.  Co.,  23  Pick. 
24;  34  Am.  Dec.  33, 


§1045 


PERSONAL  WRONGS. 


1778 


ership  of  certain  property,  to  take  it  into  his  possession, 
and  is  sued  and  compelled  to  pay  damages  for  so  doing, 
he  is  entitled  to  indemnity  from  the  party  guilty  of  the 
fraud,  and  those  assisting  him  therein.*  Where  a  person 
is  injured  in  passing  over  a  defective  bridge,  which  two 
counties  are  jointly  bound  to  keep  in  repair,  and  recovers 
judgment  of  one  county,  the  other  is  liable  to  contribu- 
tion.'^ So  there  may  be  contribution  where  the  wrong- 
doer was  not  intentionally  a  wrong-doer.  "  The  rule  that 
the  wrong-doers  cannot  have  redress  or  contribution 
against  each  other  is  confined  to  cases  where  the  person 
seeking  redress  must  be  presumed  to  have  known  that  he 
was  doing  an  unlawful  act."  ' 

Illustrations.  —  Two  men  conspired  to  release  their  land 
from  the  lien  of  a  mortgage  by  fraudulently  procuring  a  sale  to 
be  made  of  the  land  of  a  third  party,  instead  of  their  own.  One 
of  them  was  afterwards  obliged  to  pay  to  the  third  party  the 
amount  of  which  ho  had  been  defrauded,  under  a  decree  in  an 
equity  court.  Held,  that  the  rule  of  no  contribution  between 
joint  tort-feasors  was  inapplicable,  and  that  contribution  might 
bo  compelled:  Goldsborough  v.  Darst,  9  111.  App.  205.  Plain- 
tiflP  having  constructed  and  operated  a  canal,  and  having  built 
a  bridge  over  it,  which  was  a  public  thoroughfare,  granted  a 
right  of  way  across  it  with  right  to  erect  and  maintain  a  bridge 
to  defendants,  who  allowed  the  bridge  to  get  out  of  repair,  where- 
by A  was  injured.  Held,  that  both  plaintiflf  and  defendants 
were  liable,  and  that  plaintiff,  having  paid  the  full  damage, 
could  compel  defendants  to  contribute:  Minneapolis  Mill  Co. 
V.  ]Vheelcr,  31  Minn.  121.  A  constable,  induced  by  A's  repre- 
sentations that  certain  attached  goods  were  his,  let  him  have 
them.  The  owner  sued  the  constable  and  recovered  judgment, 
which  the  constable  satisfied.  Held,  that  he  and  A  were  not 
in  pari  delicto,  and  that  he  could  sue  A:  Simpson  v.  Mercer,  144 
Mass.  413. 


•  Kenyon  v.  WoodmflF,  33  Mich. 
310. 

■■'  Armstrong  Co.  v.  Clarion  Co.,  66 
Pa.  St.  218;  f)  Am.  Rep.  368. 

*  Adamson  v.  Jarvis,  4  Bing.  66;  Ja- 
cobs V.  Pollard,  10  Cush.  287;  67  Am. 
Dec.  '05;  Avery  v.  Halsey,  14  Pick. 
174;  Armstrong  Co.  v.  Clarion  Co.,  66 
Pa.  St.  218;  5  Am.  Rop.  368;  Lowell  r. 
R.  R.  Co.,  23  Pick.  24;  34  Am.  Dec 


33;  Moore  v.  Appleton,  26  Ala.  633; 
Acheson  v.  Miller,  2  Ohio  St.  203;  59 
Am.  Dec.  663,  the  court  saying  that 
"the  common-sense  rule  and  the  legal 
one  are  the  same;  namely,  that  when 
parties  think  they  are  doing  a  legal 
and  proper  act,  contribution  will  ue 
had;  but  when  the  parties  are  con- 
scious of  doing  a  wrong,  covirts  will 
not  iuterfere. 


on 


1779 


TORTS   IN    GENERAL. 


§1046 


§  1046.  Joint  Wrongf -doers  —  Injury  Sustained  by 
One.  —  Where  two  persons  are  engaged  in  the  same  un- 
lawful enterprise  or  action,  and  in  prosecuting  it  one  is 
injured  by  the  negligence  of  the  other,  ho  has  no  remedy.* 
But  it  is  essential  that  the  parties  were  engaged  in  the  same 
illegal  transaction.''  The  mere  fact  that  a  person  was 
at  the  time  breaking  the  law  does  not  put  him  at  the 
mercy  of  any  other  wrong-doer.'  Thus  a  party  injured 
on  the  highway  may  have  redress,  although  he  was  driv- 
ing at  the  time  at  an  illegal  rate  of  speed.*  So  one 
engaged  in  an  illegal  game  may  recover  for  an  injury 
received  while  so  engaged;'^  and  in  a  leading  case  in  Mas- 
sachusetts it  was  held  that  one  of  two  persons  engaged  in 
trotting  their  horses  for  money  contrary  to  law  may 
recover  damages  of  the  other  for  willfully  running  him 
down.* 


>  Wallace  v.  Cannon,  38  Ga.  109; 
95  Am.  Dec.  385;  Martin  v.  Wallace, 
40  Ua.  54. 

^  Wallace  v.  Cannon,  38  Ga.  199;  95 
Am.  Dec.  385. 

3  Molincy  v.  Cook,  26  Pa.  St.  342; 
67  Am.  Dec.  417. 

«  Baker  v.  Portland,  58  Me.  190;  4 
Am.  Rep.  274. 

'"  Etchberry  v.  Levielle,  2  Hilt.  40. 

•^  Welch  V,  Wesson,  G  Gray,  505, 
the  court  saying:  "It  appears  from 
the  bill  of  exceptions  to  have  been 
fully  proved  upon  tho  trial  that  the 
dufcauaut  willfully  ran  down  the 
plaintiff  and  broke  his  sleigh,  as  is 
alleged  in  tho  declaration.  No  justi- 
fication or  legal  excuse  of  this  act 
was  asserted  or  attempted  to  bo  shown 
by  the  defendant;  but  he  was  permit- 
ted, against  the  plaintiff's  objection, 
to  introduce  evidence  tending  to 
prove  that  it  was  done  while  the  par- 
ties were  trotting  horses  in  competi- 
tion with  each  other  for  a  purse  of 
money,  the  ownership  of  which  was 
to  bo  determined  by  the  issao  of  the 
race.  And  it  was  ruled  by  the  pre- 
siding judge  that  if  this  fact  was 
estiiblishcd,  no  action  could  be  main- 
tained by  the  plaintiff  to  recover  com- 
peusatiou   for  the  damages  he  had 


sustained,  even  though  the  injury 
complbinejl  of  was  willfully  inflictcdf. 
Under  such  instructions,  the  jury  re- 
turned a  verdict  for  tho  defendant. 
Wo  presume  it  may  bo  assumed  as  an 
undisputed  principle  of  law,  that  no 
action  will  lio  to  recover  a  demand,  or 
a  supposed  claim  for  diuiiages,  if,  to 
establish  it,  tho  plaintiff  requires  aid 
from  an  illegal  transaction,  or  is  under 
the  necessity  of  showing,  and  depend- 
ing in  any  degree  upon,  an  illegal 
agreement,  to  which  ho  himself  had 
been  a  party:  Gregg  v.  Wyman,  4 
Cush.  322;  Woodman  v.  Hubbard,  25 
N.  H.  67;  7  Am.  Dec.  .'MO;  Pluilen 
V.  Clark,  19  Conn.  421;  50  Am.  Dec. 
253;  Simpson  v.  Bloss,  7  Taunt.  246. 
But  this  principle  will  not  sustain  the 
ruling  of  the  court,  which  went  far 
beyond  it,  and  laid  down  a  much 
broader  and  more  comprehensive  doc- 
trine. Taking  without  qualification, 
and  just  as  they  were  giveii  to  tho 
jury,  the  instructions  import  that  if 
two  persons  are  engaged  in  tlio  samo 
unlawful  enterprise,  each  of  them, 
during  the  continuance  of  such  en- 
gagement, is  irresponsible  for  willful 
injuries  done  to  the  property  of  tho 
other.  No  such  proposition  as  this  can 
be  true.     Ho  who  violates  tUo  law 


§  1046 


PERSONAL  WRONGS. 


1780 


In  a  recent  Irish  case,  an  action  for  assaulting  and 
beating  the  phiintiff,  and  infecting  her  with  venereal  dis- 
ease, it  appeared  that  the  plaintiff  had,  for  a  lengthened 
period,  consented  to  illicit  sexual  intercourse  with  the 
defendant,  in  ignorance  of  the  fact,  willfully  and  deceit- 
fully concealed  by  him,  that  he  was  affected  with  the 
disease,  had  she  known  of  wliich  she  would  not  have 
consented  to  connection.  The  Irish  court  of  appeal, 
after  full  argument  and  examination  of  all  the  cases, 
held  that  the  action  was  not  sustainable  as  for  a  construc- 
tive assault,  as  the  concealment  alleged  to  have  vitiated 
the  plaintiff's  consent,  as  liaving  been  fraudulently  ob- 
tained, did  not  consist  of  deceit  as  to  the  nature  of  tho 
act  itself  to  be  done,  and  no  duty  of  disclosure  was  im- 
posed by  the  relation  of  the  parties  t*-  each  other  capable 
of  being  enforced;  and  that  an  acti  .  of  such  a  character 
was  not  maintainable,  or  fit  to  be  tried  in  a  court  of  jus- 
tice, becaxise  the  injury  complained  of  was  directly  conse- 
quent on  willful  immorality,  and  though  founded  in  tort, 


must  sufiFer  its  penalties;  but  yet,  in  all 
other  respects,  he  is  under  its  protec- 
tion, and  entitled  to  the  benefit  of  its 
remedies.  But  in  this  case  the  plain- 
tiff had  no  occasion  to  hhow,  in  order 
to  maintain  his  action,  that  he  was 
engaged,  at  the  time  his  property  was 
injured,  in  any  unlawful  pursuit,  or 
that  ho  had  previously  made  any 
illegal  contract.  It  is  true  that,  when 
he  suffered  the  injury,  he  was  acting 
in  violation  of  the  law;  for  all  horse- 
trotting  upon  wagers  for  money  is  ex- 
pressly declared  by  statute  to  be  a 
misdemeanor,  punishable  by  fine  and 
imprisonment.  But  neither  the  con- 
tract nor  tho  race  had,  as  far  aa  ap- 
Eears  from  the  facts  reported  in  the 
ill  of  exceptions,  or  from  the  intima- 
tions of  the  court  in  its  ruling,  any- 
thing to  do  with  the  trespass  commit- 
ted upon  the  property  of  the  plaintiff. 
That  he  liad  no  occasion  to  show  into 
what  stipulations  the  parties  had 
entered,  or  what  were  the  rules  or 
regulations  by  which  they  were  to  be 
governed  in  the  race,  or  whether  they 


were  in  fact  engaged  in  any  such  busi- 
ness at  all,  is  apparent  from  tho  course 
of  the  proceedings  at  the  trial.  Tho 
plaintiff  introduced  evidence  tending 
to  prove  the  wrongful  acts  complained 
of  in  the  writ,  and  the  damage  done 
to  his  property,  and  there  rested  his 
case.  If  nothing  more  had  been 
shown,  he  would  clearly  have  been 
entitled  to  recover.  He  had  not  at- 
tempted to  derive  assistance,  either 
from  an  illegal  contract  or  an  illegal 
transaction.  It  was  the  defendant, 
and  not  the  plaintiff,  who  had  occa- 
sion to  invoke  assistance  from  proof  of 
the  illegal  agreement  and  conduct,  iu 
which  both  parties  had  equally  parti- 
cipated. From  such  sources  neither 
of  the  parties  should  have  been  per- 
mitted to  derive  a  benefit.  The 
plaintiff  sought  nothing  of  this  kind, 
and  the  mutual  misconduct  of  the  par- 
ties in  one  particular  cannot  exempt 
the  defendant  from  his  obligation  to 
respond  for  the  injurious  consequences 
of  his  own  illegal  misbehavior  to 
anotber/' 


1781 


TORTS   IN   GENERAL. 


§  104G 


came  within  the  maxim,  Ex  turpi  causa  non  oritur  actio.* 
If  two  persons  voluntarily  engage  in  a  hght,  which  im- 
plies a  license  by  each  that  the  other  may  strike  him,  this 
license  being  illegal  and  void,  either  party  injured  by  the 
other  may  have  his  action  for  the  battery.^ 


'  1  Hcgerty  r.  Shine,  7  Cent.  L.  J. 
291;  8  Cent.  L.  J.  111.  Pallas,  C.  B., 
said:  "  I  1>'vse  my  judgment  upon  the 
ground  that  this  cauao  of  action  arises 
out  of  an  immoral  and  illegal  transac- 
action.  It  ia  a  typical  illustration  of 
Jio  maxim  quoted  at  the  bar,  Em  turpi 
causa  noH  oritur  actio.  A  distinction 
was  attempted  to  be  made  at  the  bar 
between  the  application  of  this  prin- 
cii)Io  to  actions  in  tort  and  in  contract, 
but  there  are  many  actions  in  tort  to 
which  it  is  imdeniable  that  that  prin- 
ciple must  apply.  For  instance,  if  a 
prisoner  in  custody  attempts  to  es- 
cape, and  the  bfllicer  in  whoso  custody 
he  is,  in  recapturing  him,  inflicts  upon 
him  a  serious  wound,  no  action  will 
lie  against  the  officer,  becaus)  the  act 
of  the  prisoner  waa  an  illogal  one. 
But  it  is  one  thing  to  say  that  this 
maxim  may  not  apply  in  case  of  a 
wrong,  and  it  is  another  to  say  that 
a  court  of  justice  is  bound  to  measure 
tlie  wrong  done,  and  to  mete  out  the 
wages  of  iniquity.  I  think  a  court  of 
justice  is  bound  to  say  that  such  a 
contract  is  void  for  immorality.  We 
have  been  told  that  there  ia  a  legal 
obligation  on  a  couit  to  go  into  the 
details  involved  in  this  immoral 
contract.  I  emphatically  deny  that. 
Whether  in  the  form  of  contract  or 
tort,  an  action  in  a  court  of  justice 
will  not  lie  on  such  a  transaction,  nor 
need  it  bo  pleaded  as  matter  of  de- 
fense. In  answer  to  such  an  action,  I 
think  the  immoral  nature  of  the  con- 


tract ought  to  bo  pleaded,  and  it 
generally  must  be  so;  but  if  that 
opportunity  bo  passed  over,  I  will  not 
undertake  to  say  that  it  is  not  in  the 
power  of  the  judge  at  the  trial  to  di- 
rect that  the  plaintiff  bo  nonsuited. 
In  the  present  case  there  was,  I  think, 
no  necessity  for  pleading  this  defense. 
An  action  is  brought  for  trespass  to 
the  person.  That  is  denied,  and  ac- 
cordmgly  the  plaintiff  must  show 
that  an  aaaault  was  committed.  The 
evidence  proves  that  the  act  was  done 
by  the  consent  of  the  plaintiff,  and 
therefore  that  she  was  not  assaulted. 
In  order  to  avoid  the  consent,  she  re- 
lies upon  the  fraud,  —  she  asks  the 
court  to  relieve  her  from  the  conse- 
quences of  a  consent  which  she  in  fact 
gave.  This  is  not  open  to  her,  because 
if  the  contract  be  an  immoral  one, 
neither  party  can  be  allowed  to  enter 
into  the  consideration  for  it,  whether 
to  sustain  the  cause  of  action  or  to 
avoid  the  consent.  The  court  should 
say.  We  decline  to  go  into  it,  therefore 
the  nonsuit  must  be  allowed." 

''  Cooley  on  Torts,  I'lO;  citing  Boul- 
ter V.  Clark,  Bull.  N.  P.  16;  Mathew 
V.  Oiler  ton.  Comb.  'J18;  Logan  i\  Aus- 
tin, 1  Stew.  470;  Hannon  r.  Edes,  15 
Mass.  346;  Brown  i'.  Gordon,  1  Gray, 
182;  Stout  V.  Wren,  1  Hawks,  420;  9 
Am.  Dec.  653;  Bell  i\  Hansley,  3 
Jones,  131;  Dole  v.  Erskine,  35  N.  H. 
503;  Adams  v.  Waggoner,  33  Ind.  531; 
5  Am.  Rep.  230;  Bartlett  v.  Churchill, 
24  Vt.  218. 


TITLE  IX 

CONSPIRACY. 


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TITLE  IX. 

CONSPIRACY. 


CHAPTER   L. 

CONSPIRACY. 

§  1047.  Conspiracy  —  Whea  actionaUlo. 

§  1048.  Who  liable. 

§  1049.  Evidence. 

§  1050.  Pleading. 

§  1047.  Conspiracy— When  Actionable.— A  conspir- 
acy is  a  combination  of  two  or  more  persons,  by  concerted 
action,  to  accomplish  some  crimintil  or  unla^v-ful  purpose, 
or  to  accomplish  some  purpose,  not  in  itself  criminal  or 
unlawful,  by  criminal  or  unlawful  means.*  Viewed  as  a 
crime  punishable  by  indictment,  the  gist  of  a  conspiracy 
is  the  unlawful  confederacy  to  do  an  unlawful  act  or  a  law- 
ful act  for  an  unlawful  purpose.  And  the  offense  is  com- 
plete when  the  confederacy  is  made.'^  But  in  the  civil 
law,  a  conspiracy,  no  matter  how  wicked  or  atrocious  its 
designs,  is  not  actionable  unless  it  results  in  damage  to 
the  party  suing.'     The  damage,  and  not  the  conspiracy,  is 

»  State  V.  MaybeiTy,  48  Me.  218; 
Stater.  Rowley,  12  Conn.  101;  Smith 
V.  People,  25  111.  17;  Commonweal th 
V.  Hunt,  4  Met.  Ill;  Alderman  v. 
People,  4  Mich.  414;  State  v.  Burn- 
ham,  15  N.  H.  396;  Hinchman  v. 
Richie,  Brightly  (Pa.)  143. 

"  Commonwealth  v.  Judd,  2  Maaa. 
337;  3  Am.  Dec.  54;  Commonwealth 
V.  Tibbetts,  2  Masa.  538;  Common- 
wealth V.  Warren,  G  Mass.  74;  People 
V.  Mather,  4  Wend.  259;  21  Am.  Dec. 
122;  State  v.  Cawood,  2  Stew.  360; 
State  V.  Rickey,  9  N.  J.  L.  293;  State 


V.  Buchanan,  6  Har.  &  J.  317;  9  Am. 
Dec.  534;  Collins  v.  CoinraonweaJth,  3 
Serg.  &  R.  220.  Sec  also  Respublica 
V.  Roas,  2  Yeatea,  8;  Jlorgan  v.  Bliss, 
2  Maaa.  112;  Commonwealth  v.  Hunt, 
Thach.  Crim.  Caaes  (Masa.)  609;  Peo- 
ple V.  Richards,  1  Mich.  210;  51  Am. 
Dec.  75. 

^  Herrou  v.  Hughes,  25  Cal.  555; 
McHenry  v.  Sneer,  50  Iowa,  649; 
Douglass  r.  Winslow,  52  N.  Y.  Sup.  Ct. 
439;  Kimball  v.  Harman,  34  MtL  407; 
6Am.£e£.  340. 


§  U47 


CONSPIRACY. 


1780 


tho  gist  of  tho  notion.'  An  act  which  if  done  by  ono 
alone  constitutes  no  ground  for  an  action  on  tho  case 
cannot  bo  made  tho  ground  of  such  rction  by  alleging  it 
to  have  boon  done  by  and  through  a  conspiracy  of  several. 
The  (juality  of  tho  act,  and  tho  nature  of  tho  injury  in- 
flicted by  it,  must  dotermino  the  question  whcthor  tho 
action  will  lie.*  And  it  is  sufficient  that  damage  results 
from  tho  conspiracy,  though  the  act  contemplated  was  not 
done.^  A  conspiracy  is  not  actionable  unless  something 
is  done  in  pursuance  of  the  conspiracy  which  without  tho 
conspiracy  would  give  a  right  of  action.*  In  an  action 
on  the  case  grounded  on  an  alleged  conspiracy  by  the 
defendants  to  injure  the  plaintiff,  he  cannot  recover  un- 
less there  is  evidence  that  he  sustained  actual  damage. 
Tlio  fact  of  conspiracy  is  simply  matter  of  aggravation, 
and  should  bo  proved  in  order  to  entitle  tho  plaintifT  to 


»  Tappan  r.  Powers,  2  Hall,  277. 
»  KiiuljuU  V.  Harman,  M   Aid.  407; 

6  Am.  Ucp.  340. 

3  Fatten  r.  Gurney,  17  Mass.  18G;  9 
Am.  l)cc.  141. 

♦  .Toiiea  v.  Baker,  7  Cow.  445;  Acllcr 
V.  Fontou,  24  How.  407;  Slieplo  v. 
Page,  12  Vt.  r)19;Hutcliiu8f.  Hutchiiis, 

7  Hill,  104;  Pago  v.  Parker,  40  N.  H. 
47;  43  N.  H.  303;  80  Am.  Dec.  172; 
Place  c.  .Minster,  G5N.Y.  81);  Patten  v. 
Gurney,  17  Mass.  18G;  9  Am.  Dec.  141; 
Eason  i\  Pctway,  1  Dev.  &  B.  44;  La- 
verty  r.  Vanarsdale,  05  Pa.  St.  507; 
Bowen  v.  Matheson,  14  Allen,  499; 
Herron?'.  Hughes,  25  Cal.  555;  Parker 
V.  Huntington,  2  Gray,  124;  Kimball 
V.  Hurman,  34  Md.  407;  0  Am.  Hep. 
340;  Hinchman  r.  Richie,  Brightly 
(Pa.)  143;  Fairbank  t-.  Newton,  50 
Wis.  028.  As  to  conspiracy  in  gene- 
ral, see  note  to  People  v.  Richards,  51 
Am.  Dec.  82-94.  In  Jones  t'.  Baker, 
7  Cow.  445,  the  court  said:  "There  is  a 
difference  between  an  action  for  a  con- 
spiracy upon  a  writ  of  conspiracy  and 
an  action  on  the  case  in  nature  of  a 
conspiracy.  The  former  must  be 
against  two  or  more;  the  latter  may 
be  against  one.  In  the  former,  if  all 
but  ono  arc  acquitted,  the  plaintiff 
cannot  have  judgment,  for  his  action 
fails;  but  it  ia  otlierwlae  iu  the  latter 


action:  Com.  Dig.,  Action  upon  tho 
Case  for  a  Conspiracy,  c.  1.  A  writ 
of  conspiracy  properly  so  called  did 
not  lie  at  tho  common  law  in  any 
case  but  where  tho  conspiracy  was  to 
indict  the  party  cither  of  treason  or 
capital  felony,  and  a  verdict  had  been 
rendered  iu  his  favor;  and  such  writ 
must  be  brought  against  two  at  least. 
All  the  other  cases  of  conspiracy  in  tho 
books  %vero  but  actions  on  tho  case; 
though  it  was  usual  in  such  actions  to 
charge  a  conspiracy.  Yet  they  might 
bo  brought  against  one:  1  Saund. 
230,  note  4;  Saville  v.  Roberts,  Ld. 
Raym.  378.  Savillo  v.  Roberts  was 
an  action  against  one  only  for  procur- 
ing the  plaintiff  to  bo  indicted  of  .a  riot. 
It  was  an  action  on  tho  case,  and  was 
held  to  lie.  Tho  case  of  Hublcy  v. 
Mott,  1  Wils.  210,  was  a  special  action 
on  the  case  for  a  malicious  prosecnticn. 
After  verdict  against  ono  only,  a  mo- 
tion was  mado  in  arrest;  in  answer 
to  which  it  was  argued  that  this  was 
an  action  on  tho  case  founded  on  a 
wrong;  where  if  any  one  be  found 
guilty,  tho  plaintiff  should  have  judg- 
ment. And  of  that  opinion  was  the 
whole  court;  and  they  considered  such 
to  bo  tho  settled  law  since  tho  case  of 
Skinner  v.  Guaton,  1  Saund.  230." 


1787 


CONSPIRACY. 


§  1047 


recover  in  ono  action  against  several.'  In  such  an  action 
alleging  that  the  defendants  combined  and  conspired  to- 
gether to  defeat  the  right  of  plaintiff  to  receive  and  possess 
a  certain  lot  of  bedsteads  which  ho  had  purchased  of  ono 
of  the  defendants,  ho  is  not  entitled  to  recover  damages 
against  such  defendant  for  breach  of  tho  contract  of  sale." 
No  action  lies  by  a  person  against  others  for  conspiring 
to  induce  one  not  to  make  him  a  gratuity  by  will,^  or  to 
induce  his  debtor  to  put  his  property  out  of  his  hands/ 
or  to  induce  another  to  violate  his  contract,*  or  by  insur- 
ance companies,  that  they  will  not  insure  any  boat  on 
which  a  certain  person  is  employed,"  or  aguiiist  several 
charged  with  conspiring  together  to  procure,  by  perjur- 
ing themselves,  the  plaintiff's  convictir  -  of  a  crimr,  a 
nolle  prosequi  having  been  entered/  A  justice  of  tho 
peace  cauiiot  maintain  an  pction  against  two  persons 
f.i;  having  maliciously  conspired  together,  by  which  ho 
was  induced  to  marry  ono  of  them,  a  minor,  by  reason  of 
which  he  was  subject  to  a  penalty  and  costs."  To  con- 
spire maliciously  and  vexatiously,  and  without  reasonable 
or  probable  cause,  to  commence  and  actually  commencing 
a  suit  in  the  name  of  a  third  party  against  tho  plain tilf, 
is  not  actionable,  where  no  legal  damage  is  alleged." 
^V^lcre  A  has  agreed  to  sell  property  to  B,  C  may,  at  any 
time  before  the  title  has  passed,  induce  A  not  to  let  B 
have  the  property,  and  to  sell  it  to  himself,  provided  he  bo 
guilty  of  no  fraud  or  misrepresentation,  without  incurring 
any  liability  to  B.     In  such  a  case,  A  alone  is  liable  to  B 


'  Kimball  v.  Hannan,  34  Md.  407; 
G  Am.  Rep.  .S40. 

'  Kimball  v.  Harman,  34  Md.  407; 
6  Am.  Rep.  340. 

^  Hutcbins  v.  Uutchiaii,  7  Hill, 
104. 

♦  Austin  V.  Barrows,  41  Coun.  287; 
Wellington  v.  Small,  3  Cush.  145;  50 
Am.  D.^c.  710;  Lamb  v.  Stono,  11 
Pick.  527;  Moody  v.  Burton,  27  Mo. 
4'J7;  4i>  Am.  Dec.  61 '2;  Benford  v.  San- 
iier,  40  Fa.  St.  9;  80  Am.  Pec.  545. 


Contra,  Penrod  v.  Momson,  8  S'^rg. 
&  R.  522;  2  Pen.  &  W.  126. 

'  Cooley  on  Torts,  126;  Kimball  v. 
Harman,  34  Md.  507;  0  Am.  Rep. 
340.  Contra,  Lumley  v.  Gye,  2  El.  & 
B.  216;  Jones  v.  Stonly,  70  N.  C.  355. 

^Orr  V.  Ins.  Co.,  12  La.  Ann.  255; 
68  Am.  Dec.  770, 

'  Garing  v.  Fraser,  76  Me.  37. 

*  Cummins  v.  Scott,  6  Watts,  510; 
31  Am.  Dec.  493. 

•  CottereU  v.  Jones,  II  Com.  B.  713. 


§  1047 


CONSPIRACY. 


1788 


for  the  breac  ii  of  contract,  and  B  cannot  maintain  an 
action  against  C  for  damages.*  It  is  not  illegal  for  the 
surety  of  a  firm  about  to  become  insolvent  to  induce  a 
member  of  the  firm  to  use  its  property  to  discharge  the 
debt  upon  which  the  surety  is  liable,  and  the  other  part- 
ners cannot  maintain  an  action  of  conspiracy  against 
their  partner  and  the  surety.^  Although  a  combination 
among  workmen  of  a  particular  trade  to  prevent  other 
workmen  from  laboring  at  a  less  rate  of  wages  than  that 
prescribed  by  them  is  contrary  to  public  policy,  and  may, 
if  carried  into  ettect  by  threats  or  acts  of  violence,  amount 
to  a  criminal  conspiracy,  yet  an  agreement  among  work- 
men that  they  will  not  themselves  work  for  less  than  a 
stipulated  price  is  not  contrary  to  law.' 

A  conspiracy  to  entice  a  citizen  of  one  state  to  go  into 
another  state,  where  he  may  be  arrested  on  civil  process,  is 
actionable;'*  or  to  maliciously  prosecute  him;^  or  to  defame 
him,  and  ruin  him  in  his  profession;"  or  to  defraud  a 
creditor  by  taking  an  assignment  of  a  debtor's  property 
and  aiding  him  to  leave  the  state ;^  or  to  vex  or  harass 
a  person  by  having  him  subjected  to  an  inquisition  of 
lunacy  without  cause.®  Where  the  parties  to  a  judgment 
that  has  been  paid  combine  to  set  it  up  as  unsatisfied,  and 
cause  an  execution  to  be  levied  on  land  on  which  the 
judgment,  whilst  in  force,  was  a  lien,  but  which  the  judg- 
ment debtor  had  conveyed  to  a  third  person,  they  are 
liable  to  such  person's  action,  though  the  execution  may 


^  Ashley  v.  Dixon,  48  N.  Y.  430;  8 
Am,  Kep.  559. 

^  Kirkpatrick  v.  Lex,  49  Pa.  St. 
122. 

"  Master  Stevedore's  Ass'n  v.  Walsh, 
2  Daly,  1;  Sayre  v.  Louisville  etc. 
Ass'n,  1  Duvall,  143;  85  Am.  Dec. 
613. 

♦  Phelps  V.  Goddard,  1  Tyler,  60;  4 
Am.  Dec.  720.  A  right  of  action 
exists  against  two  or  more  persons 
who,  by  concert  of  action,  fraudu- 
lently and  by  false  pretenses  induce 


the  plaintiff  to  leave  his  business  and 
his  home  and  travel  into  another  state: 
Cook  v.  Brown,  125  Mass.  503;  28  Am. 
Rep.  259. 

*  Dreiix  V.  Domec,  18  Cal.  83. 

8  Wildee  v.  McKee,  111  Pa.  St.  335; 
56  Am.  Rep.  271 

7  Mott  V.  Danforth,  6  Watts,  304; 
31  Am.  Dec.  468. 

^  Davenport  v.  Lynch,  6  Jones, 
545.  Aliter,  where  it  was  not  done 
maliciously  and  without  cause:  Hiuch- 
man  v.  Richie,  Brightly  (Pa.)  143. 


1789 


CONSPIRACY 


1047 


be  void,  and  the  purchaser  under  it  acquire  no  title  to  the 
land.' 


Jones, 
)t  done 
Hiuch- 
43. 


>  Swan  V.  Saddlemire,  8  Wend.  67G. 
Ill  Fia.llay  r.  McAllister,  1 13  U.  8.  104, 
the  suiu'einc  court  of  tlic  United  iStates 
say:  "  Penrod  v.  Mitchell,  8  Serg.  &  K. 
522,  was  an  action  on  the  case  in  the 
nature  of  a  writ  of  conspiracy  for 
fraudulently  withdrawing  the  goods 
of  the  defendant  in  an  execution  from 
the  reach  of  the  plaintiflF.  It  was  not 
questioned  that  the  action  would  lie. 
The  court  held  that  the  miasurc  of 
damages  was  the  value  of  the  goods 
thus  withdrawn,  and  not  the  amount 
of  the  judgment  on  which  the  execu- 
tion was  issued.  In  Mott  v.  Dan  forth, 
6  Watts,  304,  it  was  held  that  a  cred- 
itor, without  judgment  or  execution, 
and  even  before  his  debt  was  duo, 
might  sue  parties  at  law  who  conspire 
to  defeat  his  right  of  collection  by 
fraudulently  concealing  and  convert- 
ing the  debtor's  goods.  Sec  also,  to 
the  same  effect,  Kelsey  v.  Murphy,  2G 
Pa.  St.  78.  And  see  Meredith  v. 
Banning,  1  Hen.  &.  M.  584.  The  three 
cases  last  cited  extend  the  rule  further 
than  the  exigency  of  the  present  case 
requires,  and  further  than  this  court 
has  been  disposed  to  go.  These  au- 
thorities establish  the  right  of  a  judg- 
ment creditor  to  his  action  against 
rescuers  of  the  person  or  goods  of  the 
debtor  seized  by  the  sheriff  to  satisfy 
the  judgment,  or  against  one  who  pre- 
vents the  seizure  of  the  debtor's  goods 
on  execution;  and  the  principle  on 
which  they  rest  is  directly  in  the  face 
of  the  contention  of  the  defendants  in 
error,  that  the  plaintiff  has  no  legal 
interest  in  the  taxes  to  be  collected  to 
pay  his  judgment,  and  has  sustained 
no  legal  damages  by  the  alleged  acts 
of  the  defendants.  We  think  tlicy 
support  the  action  in  the  present  case. 
Of  tlio  authorities  cited  by  the  counsel 
for  the  defendant  in  error  in  support  of 
the  demurrer,  the  principal  case  is  Aiilcr 
V.  Feuton,  24  How.  407,  where  it  was 
held  that  an  action  would  not  lie  by  a 
creditor  whose  debt  was  not  yet  due, 
against  bis  debtors  and  two  others  for 
a  conspiracy  carried  into  effect  to  en- 
able the  debtors  fraudulently  to  dis- 
pose of  their  property,  so  as  to  hinder 
and  defe  it  the  creditor  in  the  collection 
of  his  debt.     Mr.  Justice  Campbell, 


who  delivered  the  opinion,  put  the 
decision  of  the  court  on  the  ground 
that  to  sustain  the  action  it  must  bo 
shown  not  only  that  there  was  a  con- 
spiracy, but  that  there  were  tortious 
acts  in  furtherance  of  it  and  conse- 
quent damage;  that  Adler  and  SchiflF, 
tlic  judgment  debtors,  were  the  lawful 
owners  of  the  propei-ty,  and  had  the 
legal  right  to  use  and  enjoy  or  .sell  it 
at  their  pleasure,  and  the  pUiiutiflFs, 
being  general  creditors,  had  no  inter- 
est in  or  lien  upon  it.  Tiu're  was, 
therefore,  no  wrong  of  which  the 
plaintiffs  toidd  complain.  In  the 
other  cases  cited  by  the  d'  feudanta 
(Lambr.  Stone,  11  Pick.  527;  Welling- 
tons. Small,  3  Cush.  146;  50  A;n.  Dec. 
719;  Smith  r.  Blake,  1  Day,  2:)S;  Bur- 
net r.  Davidson,  10  Ired.  94;  Oreeu  v, 
Kimble,  G  Blaekf.  552;  Austin  r.  Bar- 
rows, 41  Conn.  287;  Cowles  v.  Day,  30 
Conn.  410;  Moody  ?•.  Burton,  27  Me. 
427;  40  Am.  Dec.  612;  and  Bradley  v. 
Fuller,  118  Mass.  239),  the  plaintiff 
was  merely  a  g(  noral  creditor,  and  had 
no  judginent,  attachment,  nv  lion,  the 
enforcement  of  which  was  ob^'anu'tod 
by  the  defendant,  or  the  c  isos  were 
otherwise  inapplicable  to  Hk-  question 
in  hand.  In  the  present  case  there 
was  a  conspiracy,  tortious  Jiets  in  fur- 
therance of  it,  and  consequent  damige 
to  the  pliintiff.  The  property  ricized 
by  the  collector  was  in  tho  custody  of 
the  law.  Tiie  tax -payers,  for  whose 
unpaid  taxes  it  had  been  seized,  had 
no  lon^'er  any  right  to  its  po-scssion 
or  use,  and  could  not  sell  or  olhcrwise 
dispose  of  it.  It  was  d^vole  1  by  the 
law  to  be  sold  to  raise  a  fund  to  pay 
the  plziintiifs  judgment.  Th  ■  pi  jiutiff 
haJ,  therefore,  an  interesb  v.luih  the 
law  gave  liiiii  in  the  property  and  its 


sale,    and    sulTercd    a   direct    d 


image 


from  the  allegod  acts  of  the  d  'fondant, 
b^'  which  a  ^-^alu  was  prevented.  The 
plaintiff,  according  to  the  avonnont  of 
his  pi'titioii,  had  recovered  bis  judg- 
ment against  the  county;  and  he  had 
obtained  his  ■)imiidanaM  to  i\io  county 
court  directing  it  to  levy  and  cause  to 
bo  collected  a  special  tax  t  >  pay  the 
judg:nont.  The  collector  of  the  county, 
in  obedience  to  the  orders  of  the 
coi.  vy  court,  which  were  themselvea 


1047 


CONSPIRA.CY. 


1790 


A  conspiracy  to  obtain  from  a  master  mechanic  money 
wliich  he  is  under  no  legal  obligation  to  pay,  by  inducing 
his  workmen  to  leave  him,  and  by  deterring  others  from 
entering  into  his  employment,  or  by  threatening  to  do 
this,  so  that  ho  is  induced  to  pay  the  money  demanded, 
under  a  reasonable  apprehension  that  he  cannot  carry  on 
his  business  without  yielding  to  the  demand,  is  an  illegal 
conspiracy;  and  the  money  thus  obtained  may  be  recov- 
ered back  from  the  conspiring  parties,  who  are  also  liable 
for  all  damages  to  the  business  of  such  mechanic  occa- 
sioned  by  such  illegal  acts.'     A  conspiracy  to  ruin  an 


ill  obedience  to  the  mnndamus  of  the 
circuit  court,  was  proceeding  to  collect 
the  tax,  and  had  le\  'ed  on  property  to 
th;.i  end,  and  was  about  to  sell  it,  when 
the  threats  and  liostilo  demonstrations 
of  the  defendants  defeated  the  sale, 
and  the  petition  averred  the  defend- 
ants continued  to  overawe  and  intimi- 
date the  tax-payers  of  the  county,  so 
that  they  did  not  pay  the  tax,  and  the 
collector  had  not  been  able,  by  reason 
thereof,  to  collect  the  tax.  The  plain- 
tiff cannot  sue  the  collector,  for  he  has 
done  his  duty,  and  no  suit  lies  against 
him.  Unless  the  plaintiff  has  a  cause 
of  action  against  the  defendants,  he  is 
without  remedy.  To  hold  that  the 
facts  of  this  case  do  not  give  a  cause  of 
act'on  against  them  would  be  to  decide 
that  a  citizen  might  bo  subjected  to  a 
willful  and  malicious  injury  at  the 
hands  of  private  persons  without  re- 
diess;  that  an  organized  band  of  con- 
spirators could,  without  subjecting 
theinselves  to  any  liability,  fraudu- 
lently and  njaliciously  obstruct  and 
defeat  the  process  of  the  courts  issued 
for  the  satisfaction  of  the  judgment  of 
a  private  suitor,  and  thus  render  the 
judgment  nugatory  and  worthless. 
Sucli  a  conclusion  would  be  contrary  to 
the  principles  of  the  common  law,  and 
of  right  and  justice.  It  is  no  answer 
to  the  case  made  by  the  petition  to 
say,  as  the  defendants  by  their  counsel 
do,  that  the  judgment  of  the  plaintiff 
is  still  in  force  and  bearing  interest, 
and  the  liability  of  the  county  btill 
remains  undisturbed.  What  is  a 
juilgment  worth  that  cannot  bo  en- 
forced?   The  f/ravamen  of  the  plaiu- 


tiff's  complaint  is,  that  the  defendants 
have  obstructed,  and  continue  to  ob- 
struct, the  collection  of  liis  judgment, 
and  he  avers  that  he  has  been  damaged 
thereby  to  the  amount  of  his  judgment 
and  interest;  in  other  words,  that  by 
reason  of  the  unlawful  and  malicious 
conduct  of  the  defendants,  his  judg- 
ment has  been  rendered  worthless. 
To  reply  to  this  the  judgment  still  re- 
mains in  force  on  the  records  of  the 
court  is  an  inadequate  answer  to  the 
plaintiff's  cause  of  action." 

'  Carew  v.  Rutherford,  lOG  Mass.  1, 
8  Am.  Rep.  287,  the  court  saying: 
"We have  no  doubt  that  a  conspiracy 
against  a  mechanic,  who  is  under  the 
necessity  of  employing  workmen  iu 
order  to  carry  on  his  business,  to  ob- 
tain a  sum  of  money  from  which  he  is 
under  no  legal  liability  to  pay,  by  in- 
ducing his  workmen  to  leave  him,  and 
by  deterring  others  from  entering  into 
his  employment,  or  by  threatening  to 
do  this,  so  that  he  is  induced  to  pay  the 
money  demanded,  under  a  reasonable 
apprehension  that  he  cannot  carry  on 
his  business  without  yielding  to  the 
illegal  demand,  is  an  illegal  if  not  a 
criminal  conspiracy;  that  the  acts  done 
under  it  are  illegal;  and  that  the 
money  thus  obtained  may  bo  recov- 
ered back,  and  if  the  parties  succeed 
in  injuring  his  business,  they  are  lia,- 
blo  to  pay  all  the  damage  thus  done  to 
him.  It  is  a  species  of  annoyance  and 
extortion  which  tho  common  law  has 
never  tolerated.  This  principle  does 
not  interfere  with  the  freedom  of  busi- 
ness, but  protects  it.  Every  man  lias 
a  right  to  determine  what  brauch  of 


1791 


CONSPIRACY. 


§  1047 


actor  by  hisses,  groans,  etc.,  during  his  performances  may 
be  actionable,  though  the  public  have  a  right  to  manifest 
disapproval  of  an  actor's  performance.  The  wrong  con- 
sists in  the  combination  to  do  it  unfairly  and  of  malice.^ 
In  Minnesota,  a  complaint  against  a  judge  for  maliciously 
conspiring  with  others  to  institute  in  his  court  a  malicious 
prosecution  against  the  plaintiff  was  held  good  on  d'^- 
murrer,"  In  an  action  against  A,  B,  and  C  for  a  con- 
spiracy to  defraud  such  merchants  and  traders  as  they 
might  be  able  to  impose  on  by  representing  A,  who  was 
insolvent,  as  a  man  of  large  property,  and  safely  to  be 
trusted,  evidence  that  the  defendants  made  such  repre- 
sentations to  other  persons  than  the  plaintiff,  in  conse- 
quence of  which  such  persons  without  the  request  of  the 
defendants  recommended  A  to  the  plaintiff,  whereby  the 
plaintiff  was  induced  to  give  him  credit,  is  admissible.' 

Illustrations. — J.,  a  merchant  tailor,  was  engaged  in  carry- 
ing on  a  profitable  trade  in  his  lino  of  business  from  Now  York 
to  New  Orleans,  the  successful  prosecution  of  which  depended 
upon  a  knowledge  of  certain  things  known  to  so  few  that  his 
gains  were  very  large.  B.  conspired  with  J.'s  foreman,  in  J.'s 
absence,  to  obtain  the  secrets  of  the  business;  did  obtain  them, 
and  was,  in  consequence,  enabled  to  rival  J.  in  his  trade,  and  J. 
was  otherwise  injured.  Held,  that  an  action  on  the  case  lay 
against  B.  and  the  foreman,  at  the  suit  of  J.,  for  the  conspiracy, 
and  that  one  of  the  defendants  might  be  convicted  and  the 


business  he  will  pursue,  and  to  make 
hia  own  contracts  with  whom  he 
pleases,  and  on  the  best  terms  ho  can. 
Ho  may  change  from  one  occupation 
to  another,  and  pursue  as  many  diflfer- 
eut  occupations  as  he  pleases,  and 
competition  in  business  is  lawful.  He 
may  refuse  to  deal  with  any  man  or 
class  of  men;  and  it  is  no  crime  for 
any  number  of  persons,  without  an 
uidawful  object  in  view,  to  associate 
themselves  together,  and  agree  that 
they  will  not  work  for  or  deal  with 
certain  men  or  classes  of  men,  or  work 
under  a  certain  price  or  without  cer- 
tain conditions:  Commonwealth  v. 
Hunt,  4  Met.  Ill;  ,38  Am.  Dec.  346; 
Boston  Glass  Manufactory  v.  Binuey, 


4  Pick.  425;  Bowen  r.  Matheson,  14 
Allen,  499 Freedom  is  tho  pol- 
icy of  this  country Tho  acts 

alleged  and  proved  in  this  case  are 
peculiarly  offensive  to  tho  free  ])rinci- 
ples  whicli  prevail  in  this  country,  and 
if  such  practices  could  enjoy  impunity, 
they  would  tend  to  establish  a  tyranny 
of  irresponsible  persons  over  lal)or  and 
mechanical  business  which  would  be 
extremely  injurious  to  both." 

'  Gregory  v.  Brunswick,  0  ^lan.  & 
G.  205. 

»  Stewart  v.  Coolcy,  23  Minn.  347; 
23  Am.  Rep.  C90. 

»  Gardner  v.  Preston,  2  Day,  205;  2 
Am.  Dec.  91. 


g  1047 


CONSPIRACY. 


1792 


other  acquitted.     "The  damage  is  the  gist  of  the  action,  not  the 
conspiracy":  Jones  v.  Baker,  7  Cow.  446.     M.  and  seventeen 
others  employed   by  R.   as  journeymen  tailors  conspired  to- 
gether to  stop  work  simultaneously  and  return  their  work  in  an 
unfinished  condition.     This  intention  they  carried  out,  and  R. 
was  damaged  in  losing  the  money  which  ho  would   have  re- 
ceived from  the  completed  garments,  as  well  as  by  the  loss  of 
customers  and  the  injury  to  the  character  of  his  house  for  punc- 
tuality.   IMd,  that  the  facts  constituted  a  good  cause  of  action 
against  ^l.  and  his  associates:  Mapstrick  v.  Ravigc,  9  Neb.  390; 
31  Am.  Rep.  415.     The  plaintiff,  being  the  holder  of  certain 
county  bonds,  obtained  a  judgment  against  the  county  in  the 
United  States  circuit  court.     lie  afterwards  obtained  a  man- 
damus in  the  same  court  requiring  the  county  court  to  levy  a 
tax  to  pay  the  judgment.     Certain  citizens  formed  themselves 
into  a  "tax-payers'  association,"  and  succeeded,  by  threats  and 
hostile  demonstrations,  in  preventing  its  collection.     Held,  that 
t'ley  are  liable  to  the  plaintiff  in  damages:  Findlay  v.  McAllis- 
ter, llo  U.  S.  104.     At  the  suit  of  the  owner  of  a  patent  for 
vulcanized  rubber,  A,  a  dentist,  was  enjoined  from  using  the 
preparation.     Believing  that  A  disregarded  the  injunction,  the 
owner  employed  B  to  ascertain.     B  procured  C  to  apply  to  A 
for  a  set  of  teeth  upon  a  plate  of  vulcanized  rubber.     A  made 
the  teeth  upon  such  plate,  delivered  them  to  C,  and  received 
pay  therefor.     B  and  C  reported  the  facts  to  the  owner,  and 
on  their  affidavits,  proceedings  for  contempt  were  commenced 
against  A.    Held,  that  B  and  C  were  not  liable  for  a  conspiracy 
to  induce  A  to  violate  the  injunction;  that  the  owner  of  the  pat- 
ent had  a  right  to  resort  to  this  method  of  learning  the  facts,  and 
that  the  communications  of  B  and  C  to  the  owner  of  the  patent 
were  privileged:  Knowles  v.  Peck,  42  Conn.  38G;  19  Am.  Rep.  542. 
A  borrows  money  of  B,  and  gives  him  an  absolute  deed  of  land 
as  security,  on  a  mutual  understanding  that  it  siionld  be  recon- 
veyed  on  payment  of  the  loan.     C  and  D,  conspiring  against  A, 
applied  to  him,  and  proposed  to  loan  him  a  further  sum  and 
pay  the  debt  to  B,  and  hold  the  said  land  as  security  for  both 
sums.     They  then  falsely  told  B  that  they  had  made  the  pro- 
posed advances  to  A,  and  B  thereupon  conveyed  said  land  to 
them;  whereupon  they  represented  to  A's  creditors  that  they 
had  fairly  purchased  the  land,  and  that  A  was  insolvent,  and 
advised  them  to  attach  his  property,  which  was  done,  to  A's 
ruin.     Held,  that  A  might  recover  against  C  and  D:  Bulkley  v. 
Storer,  2  Day,  531.     One  of  two  partners  who  were  in  failing 
circumstances  made  a  note  in  the  name  of  the  firm  to  A,  for 
fifteen  hundred  dollars,  on  an  agreement  that  the  stock  of  the 
firm  should  be  attached  in  a  suit  on  the  note,  and  the  proceeds 
applied  ratably  to  pay  said  partners'  debts  and  the  debts  of  the 


1793 


CONSPIRACY. 


§1047 


firm.  Tho  attachment  was  made  accordingly,  and  B,  another 
creditor  of  tho  firm,  afterwards  attached  the  same  stock,  in  a 
suit  for  his  debt.  The  object  of  A's  suit  was  explained  at  a 
meeting  of  creditors  of  the  firm  and  of  said  partner  on  the  day 
of  the  attachment,  B  being  present.  A  obtained  judgment  on 
the  note,  and  seasonably  levied  execution  on  the  stock,  which 
did  not  satisfy  his  judgment,  and  distributed  part  of  the  pro- 
ceeds as  above  agreed,  and  tendered  to  B  his  ratable  part,  which 
he  refused  to  take.  B  recovered  judgment,  and  delivered  exe- 
cution thereon  to  the  officer  who  attached,  but  not  till  more  than 
thirty  days  after  rendition  of  judgment,  and  it  was  returned 
unsatisfied.  Held,  that  an  action  was  maintainable  by  B 
against  said  partner  and  A  for  a  conspiracy  to  prevent  B  from 
obtaining  his  debt  from  the  property  of  the  firm,  which  was  in- 
solvent: Adams  v.  Paige,  7  Pick.  542.  Upon  A's  entering  into 
partnership  with  B,  the  sum  of  twenty-seven  thousand  dollars 
was  lent  to  A  by  C  and  D  for  two  years,  and  put  into  the  firm 
as  A's  share  of  the  capital.  Before  this  debt  matured,  C  and  D 
brought  suit  thereon,  and  A  offered  judgment,  which  offer  was 
accepted  by  C  and  D,  and  execution  levied  on  A's  interest.  In 
an  action  by  B  against  A,  C,  and  D,  held,  that  this  raised  no 
presumption  of  a  conspiracy  by  A,  C,  and  D  to  break  up  the 
business:  Neudecker  v.  Kohlberg,  81  N.  Y.  297.  Plaintiff"  charged 
that  defendants,  in  pursuance  of  a  plan  to  extort  money  from 
him,  falsely  accused  him  before  a  magistrate  of  obtaining  goods 
from  some  of  them  under  false  pretenses,  under  which  charge 
ho  was  arrested.  Held,  that  the  offense  of  defendants  was  a 
conspiracy,  and  the  making  the  false  oath  was  a  sufficient  overt 
act:  Raleigh  v.  Cook,  60  Tex.  428.  A  declaration  charging  the 
defendants  with  falsely  and  fraudulently  conspiring  to  accuse 
the  plaintiff"  with  having  gotten  a  single  woman  with  child,  and 
thereby  procuring  from  him  a  large  sum  of  money,  held,  fatally 
defective  for  not  alleging  that  the  charge  was  false  to  the  defend- 
ants' knowledge,  and  for  not  stating  the  facts  alleged  to  consti- 
tute the  fraud:  Wright  v.  Bourdon,  50  Vt.  494.  Defendants,  A, 
B,  and  C,  combined  together  to  obtain  the  goods  of  plaintiff 
without  paying  for  them.  The  plan  adopted  was,  that  A  should 
purchase  the  goods  on  credit,  make  a  formal  sale  of  them  to  B 
and  C,  and  then  abscond.  This  plan  was  carried  out.  Held, 
that  an  action  for  conspiracy  to  defraud  could  be  maintained, 
although  no  affirmative  fraudulent  representations  were  made 
by  A  to  induce  a  credit;  that  a  concealment  of  the  true  nature 
of  the  transaction  was  sufficient:  Place  v.  Minster,  65  N.  Y.  89. 
A  sheriff'  combines  with  a  third  person  to  levy  an  execution 
which  he  holds  against  principal  and  surety  on  the  property  of 
the  surety  only,  and  thereby  makes  him  pay  the  debt,  instead 
of  the  principal.    Held,  that  he  is  not  liable  to  an  action  by  the 

113 


§1048 


CONSPIRACY. 


1794 


enrety  for  this  case:  Eason  v.  Petway,  1  Dev.  &  B.  44,  A  was 
a  shifjping-master  in  B;  tho  defendants,  in  pursuance  of  a  con- 
spiracy to  injure  A  in  his  business,  and  control  tho  business  of 
the  shipping-masters  of  B  by  compelling  them  to  ship  all  their 
Beamen  from  the  defendants,  had  taken  their  men  out  of  ships 
because  A's  men  were  in  the  same,  and  refused  to  furnish  and 
ship  men  to  him,  and  prevented  men  from  shipping  with  him, 
and  notified  the  public  that  they  had  laid  him  on  the  shelf,  and 
publicly  notified  his  cstomers  and  friends  that  ho  could  not 
ship  seamen  for  them,  and  prevented  his  getting  men  to  ship, 
or  getting  employ  as  a  shipping-master,  and  so  broke  up  A  in 
his  business.  The  defendants  were  members  of  an  association 
composed  of  keepers  of  seamen's  boarding-houses,  designed  to 
control  tho  business  of  shipping  seamen  by  requiring  tho  mem- 
bers to  ship  only  for  certain  rates,  and  to  endeavor  to  prevent 
their  boarders  from  shipping  in  vessels  where  any  of  the  crew 
were  shipped  from  boarding-houses  not  in  good  standing  with 
the  association,  etc.  Held,  that  the  declaration  did  not  set  forth 
a  cause  of  action:  Bowen  v.  Matheson,  14  Allen,  499.  A  con- 
fessed judgments  to  B,  his  creditor.  Other  creditors  of  A  sued 
A  and  B  for  a  conspiracy  to  defraud  the  plaintiffs.  Icld,  that 
if  the  judgments  were  confessed  in  good  faith  in  pursuance  of 
B's  legal  remedy  to  collect  the  debt  due  him,  ihe  action  would 
not  lie:  Collins  v.  Cronin,  117  Pa.  St.  35.  S.  agreed  to  sell  and 
•deliver  to  plaintiff  a  quantity  of  cheese.  Defendant,  by  fraud- 
ulent and  false  representations,  induced  8.  to  sell  wd  deliver 
the  cheese  to  him.  The  agreement  between  S.  and  plaintiff  was 
not  in  writing,  and  was  void  under  the  statute  of  frauds,  but  it 
would  have  been  performed  by  S.  but  for  defendant's  fraud. 
Held,  tliat  plaintiff  could  maintain  an  action  against  defendant 
for  the  damages  sustained:  Rice  v.  Manley,  66  N.  Y.  82;  23  Am. 
Rep.  30.  A  and  B  conspire  together,  A  being  irresponsible  and 
B  being  tlie  owner  of  real  estate,  that  B  shall  make  a  formal 
application  to  loan-brokers  for  a  loan  on  said  real  estate,  the 
same  being  of  value  and  undoubted  security  therefor,  and  the 
loan  being  one  whose  accomplishment  was  reasonably  certain. 
and  that  A,  upon  the  strength  of  such  application  :  .  'h. 
promise  of  the  use  of  the  proceeds  of  such  loan,  shi-.ll  ^i.  ;\>v 
and  obtain  a  temporary  loan  to  satisfy  a  pressing  dcbl,  f  A  e, 
arwi  that  when  the  money  thus  sought  has  been  obtaine^.,  ihen 
the  loan  applied  for  shall  be  declined.  Held,  that  the  party 
loaning  upon  the  strength  of  these  acts  and  representations  may 
hold  both  B  and  A  responsible  for  the  money  thus  loaned:  Lee 
V.  Leinent^  26  Kan.  lU. 

§  104:8.    Who  Liable. — Where  two  or  more  have  en- 
tered into  a  conspiracy  to  defraud  the  plaintiff,  any  act 


1795 


CONSPIRACY. 


§1048 


I 

A'6, 

,  ihtn 
party 
nsmay 
d:  Lee 


done  by  either  of  tlie  conspirators  in  furtherance  of  tho 
common  object,  and  in  accordance  with  tho  general  plan 
of  tho  conspirators,  becomes  the  act  of  all,  and  eaoh  con- 
f^pirator  is  responsible  for  such  act.'  Wlierc  a  man  has 
combined  and  conspired  with  others  to  cheat  and  defraud 
the  plaintiff  in  the  sale  of  certain  property  by  fraudulent 
concealments  and  misrepresentations,  and  the  fraud  has 
been  perpetrated  accordingly  by  some  otlier  member  or 
members  of  the  conspiracy,  he  vnU  be  liable,  although  he 
may  not,  individually,  have  made  any  fraudnlcnt  mis- 
representations, or  have  fraudulently  concealed  anything 
in  regard  to  the  condition  or  qualities  of  the  property  in 
question.^  Mere  silent  approval  of  an  unlawful  act  does 
not  render  one  liable  as  a  conspirator.^  Something  more 
than  proof  of  a  mere  passive  cognizance  of  fraudulent 
or  illegal  action  of  others  is  necessary;  there  must  be 
something  sho\ving  active  participation  of  some  kind.* 
A  member  of  an  association  is  not  merelv,  because  of  his 
membership,  liable  for  a  conspiracy  entered  into  by  the 
association  to  prosecute  one  for  an  offense  of  whi<^li  ho  is 
not  guilty.*  That  a  conspirator  expected  to  derive  no 
profit  from  the  wrong  is  immaterial  to  liis  responsibility ."^ 
It  makes  no  difference  at  what  time  any  one  enters  into 
the  conspiracy,  he  becomes  a  party  to  every  act  wliich 
had  been  previously  done  by  any  of  the  others.^  In  an 
action  against  several  for  deceit  by  fiilse  representations, 
a  fraudulent  combination  to  deceive  and  defraud  must  be 
shown;  but  when  it  is  shown,  any  act  of  one  in  further- 
ance of  the  conspiracy  is  the  act  of  all.*  But  though  a 
conspiracy  be  charged,  and  but  one  person  is  proved  to 
bo  guilty,  the  plaintiff  is  entitled  to  recover  against  him 
as  though  he  had  been  sued  iUone.* 


'  Page  V.  Parker,  43  N.  H.  363;  80 
Am.  J)cc.  172. 

-  Wige  V.  Ihirker,  43  N.  H.  363;  80 
Am.  Dec.  172. 

Braimock  v.  BouUIio,  4  Ired.  61. 

'  Evaii3  V.  People,  90  111.  384. 

^  Joluiaou  V.  Miller,  63  Iowa,  529. 


6  Stockl.>y  V.  Hornidge,  8  Car.  &.  P. 
11. 

'  Hincliman  v.  Richio,  Brightly 
(Pa.)  143. 

»  Briukley  v.  Piatt,  40  Md.  529. 

'  Juneai'.  Baker,  7  Cow  445;  Easini'. 
Weatbrook,  2  Murph.  o29;  Buffalo  Lub. 


1040 


CONSPIRACY. 


1796 


Illustrations, —  A  conspires  with  B,  who  has  no  property, 
that  B  shall  obtain  goods  on  credit  from  C,  and  deliver  them  to 
A.  B  obtains  the  goods.  Held,  that  B's  act  is  the  act  of  A, 
and  A  is  liable  toC:  Mnore  v.  Tmcy,  7  Wend.  229.  The  plain- 
tiff cliarged  the  defendants  with  a  conspiracy  to  cheat  and  de- 
fraud him,  whereby  they  fraudulently  obtained  from  him  a 
convi  yance  of  a  certain  tract  of  land  to  one  of  them,  and  prayed 
thiit  tlie  conveyance  might  be  canceled,  and  the  title  to  the 
laud  be  adjudged  to  him.  Held,  that  a  mere  participation  in 
the  fraud  practiced  by  the  defendant  to  whom  the  conveyance 
was  made  was  not  of  itself  sufficient  to  render  the  other  de- 
fendants liable:  Johnson  v.  Davis,  7  Tex.  173.  The  defendant 
and  other  persons  confederated  together  to  fraudulently  obtain 
and  divide  among  thcmselyes  a  large  amount  of  public  moneys. 
Held,  that  the  law  imposed  upon  the  defendant,  individually,  a 
liability  co-extensive  with  the  money  wrongfully  abstracted,  al- 
thougli  a  portion  of  it  may  have  been  received  by  other  persons 
acting  with  him.  Each  wrong-doer  may  bo  proceeded  against 
by  seizure  of  his  property  ana  arrest  of  his  person  until  actual 
satiifaction  of  the  demand  is  secured,  or  a  joint  actiou  may  be 
brought  against  all:  People  v.  Tweed,  5  Hun,  382. 


§  1049t.  Evidence. — When  a  connection  between  con- 
spirators is  once  proved,  the  acts  or  declarations  of  ono 
of  them  done  in  pursuance  of  the  conspiracy  may  be 
offered  in  evidence  against  them  all.^  And  evidence  of 
the  statements  of  alleged  conspirators  may  be  admitted 
before  "absolute  proof"  of  the  conspiracy.''    It  is  admis- 


Co.  V.  Oil  Co.,  42  Hun,  153.  Or  one 
may  bc^uedalone:  Id. ;  Lavcrtyv.  Vaa- 
arsdalo,  05  Pa.  St.  507,  the  court  say- 
ing: '  *  Tliia  is  an  action  upon  the  case  in 
the  nature  of  a  conspiracy  against  the 
defendants  for  falsely  and  maliciously 
combining  and  conspiring  to  prevent 
the  plaintiff  from  obtaining  employ- 
ment as  a  school-teacher,  and  by  rea- 
son of  which  combination  and  conspir- 
acy ho  was  deprived  of  employment 
as  a  school-teacher,  and  prevented 
from  earning  support  for  himself  and 
his  family  as  such.  The  damage  sus- 
tained by  the  plaintiff  is  the  ground 
of  the  action,  not  the  conspiracy. 
*  WHiere  the  action  is  brought  against 
two  or  more,  as  concerned  in  the 
wrong  done,  it  is  necessary,  in  order 
to  recover  agaiust  all  of  them,  to  prove 


a  combination  or  joint  act  of  all.  For 
this  purpose  it  may  be  important  to 
establish  the  allegation  of  a  conspir- 
acy. But  if  it  turn  out  on  the  trial 
that  only  one  was  concerned,  the 
"plain-tiff  may  still  recover,  the  same 
as  if  such  one  had  been  sued  alone. 
The  conspiracy  or  combination  is  noth- 
ing, so  far  as  sustaining  the  action 
goes,  the  foundation  of  it  being  tho 
actual  damage  done  to  the  party ': 
Hutcbins  v.  Hutchins,  7  Hill,  104; 
Jones  V,  Baker,  7  Cow.  445;  Parker 
V.  Huntington,  2  Gray,  124." 

*  Tappan  v.  Powers,  2  Hall,  277; 
Bredin  v.  Bredin,  3  Pa.  St.  81;  Card 
V.  State,  109  Ind.  415;  Owens  v.  State, 
IG  Lea,  I;  Tucker  v.  Finch,  66  Wia. 
17. 

^  Miller  v.  Dayton,  67  Iowa,  423. 


1797 


CONSPIKACV. 


1049 


277; 
Card 
State, 
■6  Wid. 


siblo  when  tbe  fact  of  the  conspiracy  is  prima  facie 
established.*  Bnt  until  proof  of  a  conspiracy  is  made,  evi- 
dence of  the  acts  is  inadmissible.''  Before  admitting 
evidence  of  the  acts  or  declarations  of  one  who  is  claimed 
to  have  been  a  conspirator  with  another  to  commit  any 
offense  or  actionable  wrong,  the  judge  must  be  satisfied 
that  apart  from  them  there  are  prima  facie  grounds  for 
believing  in  the  existence  of  the  conspiracy.^  In  such 
case,  after  the  conspiracy  has  been  consummated,  no 
subsequent  declarations  of  anv  of  the  conspirators,  not 
made  in  the  presence  of  the  others,  are  admissible  as  evi- 
dence against  the  latter.*  Actual  conspiracy  need  not  be 
proved;  but  it  may  be  inferred  from  the  action  of  the 
parties.^  Where  it  is  in  evidence  that  the  defendants 
have  acted  in  concert  and  made  false  and  fraudulent  rep- 
resentations in  procuring  from  the  plaintiff  and  others 
subscriptions  for  stock  in  a  proposed  company,  evidence 
of  the  acts  and  declarations  of  the  defendants,  either  in 
presence  or  absence  of  the  plaintiff,  or  of  each  other,  is 
admissible  if  corroborative  of  what  has  already  been 
received,  or  if  it  sheds  any  light  on  the  character  of 
the  transaction."  In  attachment,  on  the  ground  of  the 
fraudulent  concealment  of  property,  a  conspiracy  to  con- 
ceal having  been  proved,  it  is  error  to  exclude  statements 
of  a  participant  in  the  conspiracy  made  while  the  con- 
spiracy was  in  progress,  although  such  person  is  not  a 
party  to  the  record.^  In  an  action  against  two  for  en- 
ticing away  the  plaintiff's  wife,  and  inducing  her  to  elope 
with  one  of  the  defendants,  the  declarations  and  conver- 
sations of  this  defendant  during  his  absence  with  the 
plaintiff's  wife  are  admissible  in  evidence  against  him. 


•  Brown  v.  Herr,  21  Neb.  113;  Phoe- 
nix Ins.  Co.  V.  Moog,  78  Ala.  284. 

''  Gaunce  v.  Backhouse,  37  Pa  St. 
350;  Solomon  v.  Kirkwood,  55  Mich. 
25G. 

^Danville  Bank  v.  WaddiU,  31 
Grait.  469. 


♦Danville  Bank  v.  WaddiU,  31 
Gratt.  469. 

*  Jones  V.  Baker,  7  Cow.  446.  See 
Newall  V.  Jenkins,  26  Pa.  St.  159. 

6  McCabe  v.  Burns,  66  Pa.  St.  356. 

1  Weiuatein  v.  B«id,  25  Mo.  App. 
41. 


1050 


CONSPIRACY. 


1798 


before  proof  of  a  conspiracy;  and  the  co-defendant  can- 
not object  to  their  admission,  the  evidence  not  affecting 
liim  in  any  way.'  In  an  action  against  several  for  a 
joint  assault,  evidence  of  misconduct  on  the  part  of  some 
of  the  defendants  before  and  after  the  assault,  tending  to 
show  a  conspiracy,  should  be  limited  in  its  application 
to  those  defendants  against  whom  such  acts  are  proved. 
It  is  not  evidence  against  the  others.^ 

§  1050.  Pleading.  —  Want  of  probable  cause  as  well  as 
malice  need  not  be  charged  in  the  declaration.'  What- 
ever is  done  in  pursuance  of  the  conspiracy  may  be 
averred  to  be  the  act  of  all,  though  doc  3  individually.* 
The  means  by  which  the  injury  was  intended  to  be  effected 
must  ordinarily  be  stated  in  the  complaint.^  In  actions 
for  fraud  and  conspiracy,  where  a  combination  for  fraud- 
ulent purposes  is  relied  upon,  the  complaint  need  only 
state  the  fact  of  the  combination,  its  object,  and  the  ac- 
complishment thereof  to  the  injury  of  the  plaintiff.  The 
various  facts  and  circumstances  relied  on  to  establish 
the  complicity  of  the  defendants  need  not  be  set  forth  in 
detail."  In  a  suit  for  conspiring  to  remove  the  plaintiff 
from  office,  special  damage  need  not  be  alleged.'  Nor 
where  the  conspiracy  is  to  charge  the  plaintiff  with  a 
crime.*  It  is  no  bar  to  an  action  for  conspiring  fraudu- 
lently to  induce  the  plaintiff  to  come  into  this  state  with 
intent  to  cause  his  arrest  and  compel  him  to  settle  a  dis- 
puted claim  that  he  submitted  to  the  jurisdiction  with- 
out pleading  the  illegality  of  his  arrest  in  abatement." 
Where  one,  who,  by  a  conspiracy  entered  into  by  several 
persons,  has  been  deprived  of  certain  real  estate,  brings 
an  action  and  obtains  a  judgment  therein  directing  the 


J  Beeler  v.  Webb,  113  111.  436. 

2  Strout  V.  Packard,  76  Me.  148;  49 
Am.  Rep.  601. 

*  Griffiths.  Ogle,  1  Binn.  172;  Hal- 
deman  v.  Martin,  10  Pa.  St.  369. 
.    ♦  Tappau  V.  Powers,  2  Hall,  277. 


*  Setzar  v.  Wilson,  4  Ired.  501. 

•  Ynguanzo  v.  Salomon,  3  Daly,  153. 
f  Griffith  V.  Ogle,  1  Binn.  172. 
«Hood  V.  Palm,  8  Pa.  .St.  237. 
•Cook  V.  Brown,  125  Mass.  603;  28 

Am.  Rep.  259. 


1799 


CONSPIBACY. 


§1050 


cancellation  of  certain  conveyances,  and  requiring  the 
defendants  to  convey  the  property  to  him,  and  account 
for  the  rents  and  profits  received  by  them,  he  may  subse- 
quently bring  an  action  against  a  portion  of  the  defend- 
ants to  recover  any  damages  sustained  by  him,  iu  addition 
to  those  provided  for  in  the  first  judgment.* 

^  Bruce  r.  Kelly,  5  Hun,  '>29. 


TITLE  X. 

ASSAULT  AND  BATTERY. 


An 
bod 
par 
pre 
iud 
upo 
be  , 
ing 

>P 

son  t 
V.  M 
Davis 
Most 
and  ' 


TITLE    X. 

ASSAULT  AND  BATTERY. 


§  1051. 
§  1052. 
§  1053. 
P1054. 
§  1055. 
§1056. 
§1057. 
§  1058. 
§  1059. 
§1060. 
§  1061. 
§1062. 
§1063. 


CHAPTER  LI. 

ASSAULT  AND  BATTERY. 

Assault  and  battery  —  What  ia  aa  assault. 

What  ia  a  battery. 

Defenses  —  Intent  essential  —  Accidental  battery. 

Consent. 

Defense  of  person. 

Defense  of  property. 

Preventing  breach  of  peace. 

In  domestic  relations. 

Innkeepers— Common  carriers —Meetings,  etc. 

Damages  —  Measure  of. 

Aggravation  of. 

Mitigation  oL 

Evidence. 


§  1051.  Assault  and  Battery— What  is  an  Assault.— 
An  assault  is  an  atten— t,  with  unlawful  force,  to  inflict 
bodily  injury  upon  another,  accompanied  with  the  ap- 
parent present  ability  to  give  effect  to  the  attempt  if  not 
prevented,  the  person  not  being  actually  touched.^  An 
indiscriminate  assault  upon  several  persons  is  an  assault 
upon  each  individual.'^  The  following  have  been  held  to 
be  assaults,  viz.:  Raising  of  the  hand  in  anger,  or  shak- 
ing the  fist,  with  an  apparent  purpose  to  strike,  and  suf- 

>  People  t).  Yslas  27  Cal.  630;  John-  criminal  reports,  and  are  collected  by 

son  t-.  Tompkins    1  Bald.  571;  State  the  writers  on  criminal  law,  -  Bishop, 

t^   ¥=^lf  Ip.   8   Iowa    413;    State   v.  Wharton,   Russell,   and  others.     See 

Davis,  1  Ired    125;  35  Am.  Dec.  735.  also  3  Lawson's  Criminal  Defenses. 

Most  of  the  definitions  of  "assault"  ■'State  v.  Nash,  86  N.  C.  650;  41 

and  "  battery    are  to  be  found  in  the  Am.  Rep.  472. 


§1051 


ASSAULT   AND  BATTERY. 


1804 


ficiently  near  to  enable  the  purpose  to  be  carried  into 
effect;^  the  pointing  of  a  loaded  pistol  at  one  who  is 
within  its  range  ;^  the  pointing  of  a  pistol  not  loaded 
at  one  who  is  not  aware  of  that  fact,  and  making  an 
apparent  attempt  to  shoot;^  shaking  a  whip  or  the  fist 
in  a  man's  face  in  anger;*  riding  or  running  after  him 
in  a  threatening  and  hostile  manner  with  a  club  or  other 
weapon;^  making  an  apparent  attempt  to  ride  over  a  per- 
son;" striking  with  a  club  a  horse  which  another  is  driving;^ 
brandishing  a  knife,  and  threatening  a  person  with  harm 
if  ho  does  not  deliver  up  chattels;^  stopping  and  prevent- 
ing a  person  by  threats  from  passing  along  the  highway;" 
aiming  an  unloaded  gun  at  a  person  and  snapping  it  at 
him,  the  latter  not  knowing  that  it  is  unloaded;^"  cutting 
the  hair  of  a  person;"  making  demonstrations  against 
another,  to  such  an  extent  as  to  compel  him  to  go  into  an 
adjoining  garden  for  the  purpose  of  escaping.'^  So,  fol- 
lowing an  angry  controversy,  a  threatening  movement  in 
close  proximity,  accompanied  by  violent  language  in  the 
nature  of  a  threat,  and  by  a  much  larger  and  more  pow- 
erful man,  causing  one  to  fear  injury,  constitutes  an 
assault.'^  To  seize  the  reins  in  front  of  the  hands  of  the 
driver  of  a  vehicle,  and  to  direct  another  to  take  the 
horses  by  the  heads  and  turn  them,  the  latter  doing  so, 
is  an  assault,  though  there  is  no  intention  to  wound." 


>  State  V.  Vannoy,  65  N.  C.  532; 
Stephens  v.  Myers,  4  Car.  &  P.  349. 

•i  Tower  r.  State,  4  Ala.  354;  State 
V.  Church,  G3  N.  C.  15. 

3  R.  V.  St.  George,  9  Car.  &  P.  483; 
Rapp  V.  Com.,  14  B.  Mon.  614;  Rich- 
els  V.  State,  1  Sneed,  606;  Beach  v. 
Hancock,  27  N.  H.  223;  59  Am.  Dec. 
373:  State  v.  Smith,  2  Humph.  457. 

♦  People  V.  Yslas,  27  Cal.  630. 

estate  V.  Rawles,  65  N.  C.  334; 
Mortin  v.  Shoppec,  3  Car.  &  P.  373. 
See  State  v.  Neely,  74  N.  C.  425,  21 
Am.  Rep.  496,  where  a  man  chasing  a 
vomaa  was  held  guilty  of  assault. 


«  State  V.  Sims,  3  Strob.  137. 

'  Mareutille  v.  Oliver,  2  N.  J.  L. 
380. 

*  Barnes  v.  Martin,  15  Wis.  240;  82 
Am.  Dec.  670. 

'  Bloomer  i>.  State,  3  Sneed,  66. 

'»  Beach  v.  Hancock,  27  N.  H.  223; 
59  Am.  Dec.  373. 

''  ForJe  V.  Skinner,  4  Car.  &  P. 
239. 

■^  Mortin  v,  Shoppee,  3  Car.  &  P. 
373. 

"  Bishop  V.  Ranney,  59  Vt.  316. 

'*  People  V.  Moore,  N.  Y.  Sup.  Ct, 
1889. 


1805 


ASSAULT   AND    BATTERY. 


§  1051 


the 


ig  so, 


But  the  following  are  not  assaults,  viz.:  Words  alone, 
without  any  demonstration  of  force/  or  drawing  a  weapon, 
or  presenting  a  pistol,  accompanied  by  language  which 
negatives  an  intent  to  employ  it,  as,  "Were  you  not  an 
old  man,"  or,  "If  it  were  not  assize  time,  I  would,"  etc.;'^ 
nor  drawing  a  pistol  without  presenting  it;'  nor  merely 
standing  in  another's  way,  and  passively  preventing  his 
progress;'*  nor  a  mere  act  of  omission,^  or  acts  which 
merely  embarrass  and  distress;"  nor  to  separate  persons 
fighting;'  nor  taking  the  windows  from  a  room  in  which 
a  person  is  in  bed;^  nor  using  insulting  language  and 
picking  up  a  stone  about  twelve  feet  from  the  prosecutor, 
but  not  offering  to  throw  it;"  nor  to  resist  an  officer  mak- 
ing an  arrest  without  a  warrant  for  a  misdemeanor  not 
committed  in  his  view.^" 

Illustrations.  —  The  plaintiff,  a  blind  girl,  taught  music  in 
the  defendant's  family  one  day  every  week,  and  passed  the 
night  in  his  house,  lodging  in  a  room  assigned  her  by  the  de- 
fendant and  his  wife.  One  night  at  midnight  the  defendant 
came  stealthily  into  her  room,  sat  upon  her  bed,  leaned  over 
her,  and  solicited  her  to  sexual  intercourse,  which  she  refused. 
Held,  a  trespass  and  an  assault;  that  exemplary  damages  were 
proper;  and  that  the  question  whether  these  acts  would  have 
injured  a  person  of  ordinary  nerve  and  courage  was  immaterial: 
Newell  v.  Whitcher,  53  Vt.  589;  38  Am.  Rep.  703.  A  was  ad- 
vancing in  a  threatening  attitude,  with  an  intention  to  strike 
B,  so  that  his  blow  would  have  almost  immediately  reached  B, 
if  ho  had  not  been  stopped.  Held,  that  it  was  an  assault  in 
point  of  law,  though  at  the  particular  moment  when  A  was 
stopped  he  was  not  near  enough  for  his  blow  to  take  effect: 
Stephens  v.  Myers,  4  Car.  &  P.  349.     The  plaintiff  being  in  the 


'  state  i'.  Mooney,  Phill.  (N.  C.)  43i; 
Wancu  V.  State,  33  Tex.  517;  Smith 
i:  State,  3*J  Miss.  521;  Hairston  v. 
State,  ui  Miss.  C93;  Keyes  v.  Devlin, 
3E  D.  Smith,  518. 

^  Blake  v.  Barnard,  9  Car.  &  P.  C26; 
Com.  r.  Eyre,  1  Serg.  &  R.  347;  State 
v.  Crow,  1  Ired.  375;  Tuberville  v. 
Savage,  1  Mod.  3. 

'  Lawsoii  V.  State,  30  Ala.  14;  War- 
ren r.  State,  33  Tex.  617;  VVoodruflF 
V.  Woodi-uflF,  22  Ga.  237. 


« Innes  v.  Wylie,  1  Car.  &  K.  257. 

*  R.  V.  Smith,  2  Car.  &  P.  440. 

*  Stcarus  v.  Sampson,  50  Me.  568; 
8  Am.  Rep.  442. 

'  Griffin  v.  Parsons,  1  Selw.  25. 

8  Meader  v.  Stone,  7  Met.  147; 
Stearns  v.  Sampson,  59  Me.  5GS;  8 
Am.  Rep.  442. 

»  State  V.  Milsaps,  82  N.  C.  549. 

'°  Commonwealth  v.  Bryant,  9  Fhila, 
595. 


§1053 


ASSAULT   AND   BATTERY. 


180G 


defendant's  workshop  and  refusing  to  quit  when  desired,  the 
defendant  and  his  servants  surrounded  him,  and,  tucking  up 
their  sleeves  and  aprons,  threatened  to  break  his  neck  if  he  did 
not  go  out,  whereupon  the  plaintiff,  apprehensive  of  violence, 
departed.  Held,  an  assault:  Bead  v.  Coker,  13  Com.  B.  850. 
Plaintiff  went  into  defendant's  store  to  buy  a  cloak.  While  she 
had  it  on,  a  floor-walker  charged  her  with  being  a  spy  from  a 
rival  store,  and  ordered  the  saleswoman  to  take  the  cloak  from 
off  plaintiff,  which  the  saleswoman  did.  Held,  that  defendant 
was  liable  as  for  an  assault:  Geraty  v.  Stern,  30  Hun,  426. 

§  1052.  What  is  a  Battery. — A  battery  is  an  injury 
actually  done  to  the  person  of  another  in  an  angry  and 
revengeful  or  rude  and  insolent  manner.^  It  of  course 
includes  an  assault.^  Thus  the  following  acts  amount  to 
a  battery:  Striking  a  person,  or  rudely  laying  hands  on 
him;^  or  jostling  him;  or  spitting  on  him;'*  or  pushing 
him;^  or  throwing  anything  upon  him;^  or  striking  his 
clothes,  or  a  cane  in  his  hand;^  or  cutting  off  one's  hair;"^ 
or  upsetting  a  chair  or  carriage  in  which  he  is  sitting;"  or 
riding  a  bicycle  against  another  who  is  facing  the  other 
way,  the  walk  being  fourteen  feet  in  width,  and  there  being 
nothing  to  obstruct  the  view;^"  or  to  handcuff  a  person 
arrested,  there  being  no  attempt  to  escape  or  fear  of  res- 
cue;" or  giving  a  woman  candy  to  cat  containing  a  deleteri- 
ous substance;'^  or  for  a  man  without  any  innocent  excuse 
to  put  his  arm  around  the  neck  of  another's  wife  against 
her  will.^''  But  it  is  not  a  battery  to  touch  another  to  attract 
his  attention  ;^^  nor  to  clap  a  man  on  the  back  in  joke  or 
play  or  friendship;'^  nor  to  strike  a  horse  which  one  is 


1  Kirland  v.  State,  43  Ind.  14C;  13 
Am.  Rep.  38G;  Com.  v.  Ruggles,  6 
Allen,  588;  Johnson  v.  State,  35  Ala, 
3(33. 

■^  Johnson  v.  State,  35  Ala.  363. 

'  Cole  V.  Turner,  G  Mod.  149;  United 
States  V.  Ortego,  4  Wash.  534. 

*  James  v.  Campbell,  5  Car.  &  P. 
372;  R.  V.  Coteaworth,  6  Mod.  172. 

*  State  V.  Baker,  C5  N.  C.  .322. 

8  Pursell  V.  Horn,  8  Ad.  &  E.  G04. 
'  R.  V.  Do  Longchamps,  1  Dall.  1 14. 
8  Forde  v.  Skiuuer,  4  Oar.  &  P.  239. 


»  Hopper  V.  Reeve,  7  Taunt.  G98. 

"Mercer  c.  Corbin,  Ind.  (1889). 

"■  Griffin  v.  Coleman,  4  Hurl.  &  N. 
265:  Wright  v.  Court,  4  Barn.  &  C. 
596. 

i^Com.  ?-.  Stratton,  114  Mass.  303; 
19  Am.  Rep.  352. 

"  Goodrum  v.  State,  GO  Ga.  509. 

>♦  Coward  /'.  Baddoley,  4  Hurl.  &  N. 
478. 

'''  Williams  r.  Jones,  Hardin,  301.  In 
an  action  for  an  assault,  to  which  the 
defense  waa  that  the  act  complained 


1807 


ASSAULT  AND   BATTERY. 


§1053 


driving;^  nor  to  push  gently  against  one  in  making  way- 
through  a  crowd.^ 

§  1053.  Defenses— Intent  Essential — Accidental  Bat- 
tery. —  In  a  battery  there  must  always  bo  an  intent, 
express  or  implied,  to  do  the  injury;  and  therefore  an 
accidental  hurt  in  which  the  actor  was  blameless  is  no 
battery.^  And  one  is  not  liable  for  an  unintentional 
injury  resulting  from  the  exercise  of  his  right  of  self- 
defense,^  as  where  one,  in  defending  himself  from  the 
assault  of  another,  struck  a  third  person,  mistaking  him 
for  the  assailant.^  Trespass  will  not  lie  against  a  person 
for  making  an  affidavit  upon  which  another  is  unlawfully 
arrested,  if  he  made  the  same  with  no  knowledge  of  the 
purpose  for  which  it  was  to  be  used,  and  did  not  intend 
to  have  it  so  used."  But  it  is  not  essential  that  the  pre- 
cise injury  which  was  done  should  have  been  designed.^ 
One  who  hurls  a  missile  into  a  crowd  may  have  no  one 
in  view  as  the  object  of  injury,  but  he  commits  a  battery 
upon  the  person  struck.*  So  if  one  shoot  at  a  mark  and 
hit  a  person,  shooting  at  a  mark  being  a  dangerous  act  in 


of  was  done  in  play,  the  judge  ruled 
that  if  the  defendant  intended  to  do 
no  bodily  harm,  and  the  parties  were 
lawfully  playing  by  mutual  consent, 
and  the  act  was  no  other  than  the 

f)laintiflf  had  reason  to  suppose  would 
)e  in  such  play,  the  defendant  was 
not  liable;  that  whether  the  force 
used  was  reasonable  was  not  to  be  de- 
termined by  the  results,  but  from  the 
evidence  of  the  force,  and  the  circum- 
stances and  nature  of  the  act;  and 
that  if  the  defendant  intended  to  do 
the  act,  and  the  act  was  unlawful  and 
unjustifiable,  and  caused  bodily  harm, 
the  plaintiff  could  recover.  On  appeal 
it  was  held  that  the  defendant  had  no 
ground  of  exception:  Fitzgerald  v. 
Cavin,  110  Mass.  153. 

'  Kirland  v.  State,  43  Ind.  146;  13 
Am.  Rep.  380.  But  aliter,  if  ho  is 
thrown:  Dodwell  v.  Burford,  I  Mod. 
24;  Bull  V.  Colton,  22  Barb.  94.    And 


see  Clark  v.  Downing,  55  Vt.  259;  45 
Am.  Rep.  612. 

2  Colo  V.  Turner,  6  Mod.  149, 

*Cooley  on  Torts,  104;rt«;e,  sec.  lOl.S, 
Accidents;  Brown  v.  Kendall,  6  Cush. 
292.  The  defendant  in  an  action  for 
assault  and  battery  may  testify  as  to 
the  intent  with  which  he  approached 
the  plaintiff,  and  also  as  to  what  he 
thought  the  plaintiff  was  about  to  do 
with  an  ax  which  ho  raised  in  his 
hand:  Plank  v.  Grimm,  62  Wis.  251. 

♦Paxton  V.  Boycr,  67  111.  132;  16 
Am.  Rep.  615;  Morris  v.  Piatt,  32 
Conn.  75. 

*  Paxton  V.  Boyer,  67  111.  132;  16 
Am.  Rep.  615. 

«  Roth  V.  Smith,  41  111.  314. 

'  Peterson  v.  Haffncr,  59  Ind.  130; 
26  Am.  Rep.  81. 

8  Scott  V.  Shepherd,  2  W.  Black.  892; 
State  V.  Myers,  19  Iowa,  517;  Conway 
V.  Reed,  66  Mo.  34G;  27  Am.  Ecp.  354. 


1063 


ASSAULT  AND   BATTERY. 


1808 


the  vicinity  of  people,  he  is  liable.*  So  if  two  persons 
fight,  and  unintentionally  one  strikes  a  third,  this  is  a 
battery  of  the  latter,  and  is  not  excused  us  mere  accident, 
for  the  purpose  was  to  strike  an  unlawful  blow,  to  the  in- 
jury of  some  one.^  So  an  action  lies  for  an  unwarranted 
assault  and  battery,  although  not  committed  in  anger; 
as  where  the  defendant,  seeing  the  plaintiff  intoxicated, 
interfered  to  prevent  a  tumultuous  quarrel,  and  in  the 
scuflQe  that  ensued  the  plaintiff's  leg  was  broken.^ 

Illustrations.  —  A  trespasser  warned  off  the  land  by  the 
owner  assaulted  the  latter,  who  defended  himself,  and,  while  so 
doing,  a  gun  which  he  had  was  accidentally  discharged  and  in- 
jured the  assailant.  Held,  that  he  could  not  recover  for  the 
injury:  Fossbinder  v.  Svitak,  16  Neb.  499.  A  boy  thirteen  years 
of  ago,  in  sport,  but  wantonly,  threw  a  piece  of  mortar  at  another 
boy,  which  accidentally  hit  a  third  boy  and  injured  his  eye. 
Held,  that  he  was  liable  in  damages  to  the  latter  in  an  action 
of  assault  and  battery:  Peterson  v.  Haffner,  59  Ind.  130;  26  Am. 
Rep.  81.  The  defendant,  in  striking  with  his  whip  at  the 
seducer  of  his  niece,  and  adopted  daughter,  with  whom  he  was 
riding,  accidentally  hit  the  plaintiff.  Held,  that  he  was  liable 
for  an  assault:  Corning  v.  Corning,  6  N.  Y.  97.  A  and  B, 
school-boys,  were  in  the  school-yard  together,  and  had  been 
shooting  with  a  bow  and  arrow,when,  on  some  remark  being  made 
by  A,  B  said,  "I  will  shoot  you."  A  ran  into  the  school-house 
and  hid  behind  a  fire-board.  B  followed,  and  saying,  "See  me 
shoot  that  basket,"  discharged  the  arrow.  At  that  moment  A 
raised  his  head  and  the  arrow  struck  him,  destroying  one  of  his 
eyes.  There  were  a  number  of  boys  in  the  room  at  the  time: 
Held,  that  B  was  liable  for  an  assault:  Bullock  v.  Bahcock,  3 
Wend.  391.  The  defendant  having  interfered  to  part  his  dog 
and  the  plaintiff's,  which  were  fighting,  in  raising  the  stick  for 
that  purpose,  accidentally  struck  the  plaintiff  and  injured  him. 
In  an  action  of  trespass  for  the  assault  and  battery,  held,  that  the 
parting  of  the  dogs  was  a  lawful  and  proper  act,  which  the  defend- 
ant might  do  by  the  use  of  proper  and  safe  means;  and  that  if  in 
so  doing,  and  while  using  due  care  and  taking  all  proper  pre- 
cautions necessary  to  the  exigency  of  the  case  to  avoid  hurt  to 
others,  the  injury  to  the  plaintiff  occurred,  the  defendant  was 
not  liable  therefor:  Brown  v.  Kendall,  6  Cush.  292.     A  threw  a 

'  Welch  V.  Durand,  36  Conn.  182;  4       »  Johnson  v.   McConnell,   15  Hun, 
Am.  Rep.  55.  293. 

>  James  v.  Campbell,  5  Car.  &  P.  372. 


1809 


ASSAULT   AND   BATTERY.  §§  1054,  1055 


stick  which  struck  the  plaintiff,  but  it  did  not  appear  for  what 
purpose  the  stick  was  thrown.  Held,  that  it  was  fair  to  con- 
clude that  the  stick  was  thrown  for  a  proper  purpose,  and  tiiut 
the  striking  of  the  plaintiff  was  an  accident:  Alderson  v.  Wain' 
tell,  1  Car.  &  K.  358. 

§  1054.  Defenses — Consent.  —  Consent  of  the  party 
injured  is  a  defense.^  In  an  action  by  husband  and  wife 
for  an  assaulo  and  battery  on  her,  it  is  a  good  defense 
that  the  act  complained  of  was  committed  with  the  con- 
sent and  at  the  request  of  the  wife.^  A  par+y  may  re- 
cover for  an  assault  and  battery,  although  he  and  his 
adversary  fought  by  mutual  consent.^  And  consent  ob- 
tained by  fraud  is  no  defense.* 

Illustrations.  —  The  mistress  of  a  female  servant,  believing 
her  to  be  enceinte,  sent  for  a  doctor  to  examine  her.  Upon  the 
doctor's  arrival,  the  servant  remonstrated,  but  ultimately,  upon 
being  told  that  she  must  do  so,  submitted  reluctantly  to  the  exam- 
ination. The  suspicion  proved  to  be  unfounded.  The  servant 
subsequently  brought  an  action  of  assault  against  her  master 
and  mistress  and  the  doctor.  Held,  that  there  was  no  evidence  to 
show  that  what  was  done  was  against  the  plaintiff's  will,  and 
that,  in  the  absence  of  any  evidence  of  force,  violence,  or  coer- 
cion, neither  the  mistress  nor  the  doctor  was  liable:  Latter  v. 
Braddell,  12  Cent.  L.  J.  282. 

§  1055.  Defenses — Defense  of  Person. — It  is  a  defense 
to  an  action  for  an  assault  and  battery  that  it  was  com- 
mitted while  the  defendant  was  exercising  his  right  of  self- 
defense.^  But  the  rule  in  criminal  cases  as  to  self-defense,^ 
that  the  person  assailed  must  not  use  excessive  force  in 


5  Hun, 


>  State  V.  Beck,  1  Hill  (S.  C.)  3G3; 
2G  Am.  Dec.  190;  Champer  v.  State, 
14  Ohio  St.  437;  Fitzgerald  v.  Cavin, 
110  Mass.  153;  Smith  v.  State,  12  Ohio 
St.  400;  80  Am.  Dec.  355;  Duucan  ,:;, 
Coin. ,  0  Dana,  595.  See  3  Lawson  on 
Criminal  Defenses,  and  ante,  sec.  1046, 
Joint  Wrong-doers  —  Injuries  Sus- 
tained by  One. 

•^  Pillow  V.  Bushnell,  5  Barb.  156. 

^  Boll  i\  Hansley,  3  Jones,  131; 
Stout  V.  Wren,  1  Hawks,  420;  9  Am. 
Dec.  653;  Logan  v.  Austin,   1  Stew.. 

114 


476;  Adams  v.  Waggoner,  33  Ind.  53; 
5  Am.  Rep.  231;  Com.  v.  CoUberg, 
119  Mass.  530;  20  Am.  Rep.  :V2S. 

*  Com.  V.  Stratton,  1 14  Mass.  303; 
19  Am.  Rep.  350.  But  see  Stearns  i\ 
Sampson,  59  Me.  568;  8  Am.  Rep. 
442. 

^  Paxton  V.  Boyer,  67  111.  132;  16 
Am.  Rep.  615;  Morris  y.  Piatt,  32 
Conn.  75. 

"  Sec  1  Lawson  on  Criminal  De- 
fenses, where  all  the  cases  on  self- 
defense  a,re  collected. 


g  1055 


ASSAULT   AND   BATTERY. 


1810 


18 


defending  himself,  nor  inflict  unnecessary  injuries  in  re- 
pelling  slight  injuries,  nor  take  life  unless  life  or  limb  is 
in  peril,  and  he  cannot  escape  by  retreating,  applies  also 
in  the  civil  action/  So  one  who  provokes  and  brings  on 
an  affray  cannot  claim  that  he  beat  his  adversary  in  self- 
defense,  however  imminent  the  danger  to  which  he  was 
exposed  during  the  affray.^  When  a  party  is  assaulted, 
the  degi'eo  of  force  which  he  may  employ  in  repelling  the 
assault  depends  to  some  extent  upon  the  known  char- 
acter of  the  assailant,  whether  peaceable  or  quarrelsome.' 
A  i:)crson  assaulted  cannot  use  force  in  self-defense,  if 
there  are  other  means  available  which  appear  to  him 
sufficient.*  Ho  is  not  justified  in  using  a  knife  or  other 
dangerous  weapon,  where  the  circumstances  do  noi  show 
any  reasonable  apprehension  of  great  bodily  harm.*  If 
the  party  attacked  uses  excessive  force,  he  becomes  a  tres- 
passer himself,  and  his  assailant  may  recover  damages  for 
the  excessive  force  used."  Though  the  contrary  has  been 
held  in  New  York,^  each  party  has  a  right  of  action  against 
the  other, — one  for  the  original  assault,  and  the  other  for 
the  excessive  force  used  in  repelling  it.^     The  force  that 


'  Baldwin  v.  Hayden,  6  Conn.  453; 
Taylor  r.  Clendeuing,  4  Kan.  524; 
Murray  v.  Bosque,  42  Mo.  472;  Floyd 
V.  State,  3GGa.  91;  91  Am.  Dec.  700; 
State  V.  Bryson,  1  Winst.  86;  Cum- 
mins V.  Crawford,  88  111.  312;  30  Am. 
Rep.  55S;  Marks  v.  Brown,  1  Tenn. 
87;  25  Am.  Rep.  7G4.  In  an  action 
for  damages  for  a  willful  assault  and 
battery,  the  rule  of  contributory  neg- 
ligence on  plaintiflf 's  part  does  not  ap- 
ply. The  person  assaulted  is  not 
bound  to  retreat:  Steinmetz  v.  Kelly, 
72  Ind.  442;  37  Am.  Rep.  170. 

Moues  f.  dale,  22  Mo.  App.  G37. 
See  Norris  v.  Casel,  90  Ind.  143. 

^  Harrison  v.  Harrison,  43  Vt.  417. 

*  Ilowland  V.  Day,  50  Vt.  318. 

*  Close  V.  Cooper,  34  Ohio  St.  98. 

6  Cockcroft  V.  Smith,  Salk.  G42;  Dole 
V.  Erskiue,  35  N.  H.  503;  Bartlett  v. 
Churchill,  24  Vt.  218;  Philbrick  v. 
Foster,  4  Ind.  442;  Elliott  v.  Brown, 
2  Wend.  497i  20  Am.  Dec.  C44i  Curtis 


V.  Carson,  2N.  H.  539;  Brown  v.  Gor- 
don, 1  Gray,  182. 

'  Elliott  V.  Brown,  2  Wend.  497;  20 
Am.  Dec.  045. 

8  Ogden  V.  Claycomb,  52  111.  365; 
Gizler  v.  Witzol,  82  111.  510;  Bobb 
V.  Bosworth,  Litt.  Sel.  Cas.  81;  12 
Am.  Dec.  273;  Dole  r.  Erskine,  35 
N.  H.  503,  the  court  saying:  "Ui)  to 
the  time  that  the  excess  is  used,  the 
party  assaulted  is  in  the  right.  Until 
ho  exceeds  the  bounds  of  self-defense, 
he  has  committed  no  breach  of   the 

Eeace,  and  has  done  no  act  for  which 
e  is  liable,  while  his  assailant,  up  to 
that  time,  is  in  the  wrong,  and  is  liable 
for  his  illegal  acts.  Now,  can  this  cause 
of  action  which  the  assailed  party  has 
for  the  injury  inflicted  upon  him,  and 
which  may  have  been  severe,  bo  lost 
by  acts  of  violence  subsequently  com- 
mitted by  himself?  Can  the  assault 
and  battery  which  the  assailant  him- 
self has  couuoitted  be  merged  in  or 


1811 


assjlult  and  battery. 


§  1055 


a  person  may  employ  to  defend  himself  he  may  likewise 
employ  to  defend  his  wife,  his  child,  or  other  member  of 
his  family.'  And  it  is  as  unlawful  for  a  grown  son  or 
daughter  to  create  a  disturbance  in  the  family  as  for  a 
mere  stranger;  the  father  may  as  rightfully  interpose  to 
preserve  the  good  order  and  propriety  of  his  household  in 
tlic  one  case  as  in  the  other,  and  such  interference  will 
not  be  an  assault.^ 


set  off  against  the  excessive  force  used 
by  the  assailed  party  ?  Unless  this  be 
so,  and  the  party  first  commencing 
tliu  assault  and  inflicting  the  blows, 
and  thus  giving  to  the  other  side  a 
cause  of  action,  can  have  the  wrong 
tlms  done  and  the  cause  of  action  thus 
j.ivcn  wiped  out  by  the  excessive  cas- 
tigation  he  receives  from  the  other 
party,  then  each  party  may  maintain 
an  action,  the  one  that  is  assailed 
for  the  assault  and  battery  first 
committed  upon  him,  and  the  assail- 
ant for  the  excess  of  force  used  upon 
him  beyond  what  was  necessary  for 
bclf-dcfeuse.  Wo  think  that  these  are 
not  matters  of  set-ofiF;  that  the  one 
cannot  bo  merged  into  the  other,  and 
tliat  each  party  has  been  guilty  of  a 
wrong  for  which  he  has  made  himself 
liable  to  the  other.  There  have,  in 
cfl'cct,  been  two  trespasses  committed; 
tho  one  by  the  assailant  in  commen- 
cing the  assault,  and  the  other  by  the 
assailed  party  in  using  the  excessive 
force.  And,  upon  principle,  we  do 
not  see  why  the  one  can  be  an  answer 
to  the  other,  any  more  than  an  assault 
committed  by  one  party  on  one  day 
can  bo  set  off  against  one  committed 
by  tho  other  party  on  another  day. 
The  only  difference  ■tvould  seem  to 
consist  in  tho  length  of  time  that  had 
elapsed  between  the  two  trespasses. 
In  a  case  where  excessive  force  is  used, 
tliu  party  using  it  is  innocent  up  to 
tho  time  that  he  exceeds  the  bounds 
of  self-defense.  When  he  uses  the  ex- 
cessive force,  he  then,  for  the  first 
time,  becomes  a  trespasser.  And 
wherein  consists  the  difference,  ex- 
cept it  be  that  of  time,  between  a  tres- 
pass committed  by  him  then  and  one 
committed  by  him  on  the  same  person 
tlie  day  after  ?  In  Elliott  v.  Brown,  it 
is  conceded  that  both  parties  may  be 


indicted  and  both  bo  criminally  pun- 
ished, notwithstanding  it  was  there 
held  that  a  civil  action  can  be  main- 
tained only  against  him  who  has  been 
guilty  of  the  excess.  If  this  bo  so, 
and  each  party  can  bo  criminally  pun- 
ished, then  each  must  have  been  guilty 
of  an  assault  and  battery  upon  the 
other;  and  if  thus  guilty,  why  should 
not  a  civil  action  be  maintained  by 
each?  It  would  seem  that  the  fact 
that  both  are  indictable  shows  that 
each  is  in  tho  wrong  as  to  tho  other, 
and  that  each  has  a  cause  of  action 
against  tho  other,  and  that  such  cause 
ot  action  may  be  successfully  prose- 
cuted, untess  one  is  to  be  set  off  against 
the  other.  That  torts  are  not  tho  sub- 
jects of  set-off  is  entirely  clear.  We 
arrive,  then,  at  the  conclusion  that 
the  causes  of  action  existing  in  such 
cases  cannot  be  set  off,  the  ono  against 
the  other,  nor  merged,  the  one  in 
the  other,  but  that  each  party  may 
maintain  an  action  for  the  injury  re- 
ceived; the  assailed  party  for  the  as- 
sault first  committed  upon  him,  and 
the  assailant  for  the  excess  above  what 
was  necessary  for  self-defense.  This 
rule,  it  appears  to  us,  will  do  more 
justice  to  the  parties,  and  more  credit 
to  the  law,  than  tho  other;  for  by  it 
the  party  who  commenced  the  assault, 
and  who  has  been  the  moving  cause  of 
the  difficulty,  is  made  to  answer  in 
money,  instead  of  having  his  assault 
merged  in  the  one  which  he  has  pro- 
voked, and  which  has  been  inflicted 
upon  him  by  his  antagonist." 

'  Com.  V.  Malone,  114  Mass.  295; 
Patten  v.  People,  18  Mich.  314;  100 
Am.  Dec.  173;  Stater.  Gibson,  10  Ired. 
214;  Hathaway  v.  Rice,  19  Vt.  102; 
Obier  v.  Neal,  1  Houst.  449;  Hill  v. 
Rogers,  2  Iowa,  67. 

■'  Smith  V.  Slocum,  62  111.  354. 


§1050 


ASSAULT   AND   BATTERY. 


1812 


Illustrations.  —  A  grown  daughter,  who  had  heon  married 
and  had  left  her  husband  and  waa  Hving  in  her  father's 
family,  {zot  into  an  angry  dispute  with  a  hired  girl,  and  when 
ordered  by  her  father  to  leave  and  go  to  her  own  room,  refuseil 
to  do  Ko,  and  in  her  dispute  with  her  father  made  remarks  im- 
puting a  want  of  cliastity  in  her  stepmother  in  her  presence 
and  in  tlyit  of  several  others.  Held,  that  the  father  had  a  right 
to  protect  his  wife  from  such  slanderous  abrse  the  same  as 
from  a  mere  stranger,  and  to  exercise  his  authority  as  the  head 
of  the  family  in  moderation  to  preserve  the  order  of  his  family; 
and  if  in  so  doing  he  used  no  more  force  than  was  necessary, 
ho  was  not  liable  in  trespass:  Smith  v.  Slocum,  G2  111.  354. 


§  1056.  Defense  of  Property. — One  may  also  justify 
an  assault  or  battery  committed  in  defending  his  posses- 
sion of  property,  either  personal  or  voal,  subject  to  the 
same  restriction  that  he  must  not  employ  excessive  force.^ 
The  owner  of  land  may,  by  the  use  of  reasonable  and 
necessary  force,  resist  an  attempt  by  the  former  occupant 
to  retake  possession.^  A  man  assaulted  in  his  dwelling 
is  not  obliged  to  retreat,  but  may  defend  his  possession  to 
the  last  extremity.'  He  may  kill  a  burglar  breaking  in.* 
Ordinarily,  in  defense  of  possession  an  assault  and  battery 
are  justifiable,  but  a  wounding  is  not;  but  in  defending 
an  assault  by  the  intruder,  a  wounding  is  justifiable.*^ 

So  ho  lias  a  right  to  remove  an  intruder  from  his  prem- 
ises, or  one  who,  being  there,  uses  indecent  or  abusive 
language,  or  disturbs  the  peace  of  the  family,  or  commits 


*  Cooley  on  Torts,  1G7;  Abt  v.  Burg- 
hcim,  80  111.  9-2;  Ay  res  v.  Birtch,  35 
Mich.  501 ;  Stachlin  v.  Destrehan,  2  La. 
Ann.  1019;  Gregory  t'.'Hill,8TormKep. 
299;  Parsons  v.  Brown,  15  Barb.  590; 
Scribner  i:  Beach,  4  Denio,  448;  47 
Am.  Dec.  '2G5;  Gates  r.  Lounsbury,  20 
Johns.  427 ;  McCarthy  v.  Fremont,  23 
Cal.  19(i;  Nowkirk  v.  Sabler,  9  Barb. 
C52;  I5eecher  v.  Parmele,  9  Vt.  352;  31 
Am.  Dec.  G33.  Ami  see  ante,  sec.  1035, 
Recaption.  To  an  action  for  throwing 
water  o\"cr  the  plaintiffsapartraentand 
herself,  it  is  no  plea  that  the  plaintiff 
was  engaged  in  obstructing  an  ancient 


window  of  the  defendant  s  house,  and 
the  defendant  threw  water  over  her  to 
prevent  it:  Simpson  v.  Morris,  4 
Taunt.  821. 

2  Bliss  V.  Johnson,  73  N.  Y.  529. 

3  Pond  V.  People,  8  Mich.  150;  Pit- 
ford  V.  Armstrong,  Wright,  94. 

*  McPherson  v.  State,  22  Ga.  478. 
See,  further,  Thompson  v.  State,  5.5 
Ga.  47;  Palmorev.  State,  29  Ark.  248; 
Wall  V.  State,  51  Ind.  453;  State  v. 
Stockton,  01  Mo.  382. 

*  Shain  v,  Markham,  4  J.  J.  Marsh. 
578;  20  Am.  Dec.  232. 


1812 


1813 


ASSAULT   AND   BATTERT. 


1056 


an  assault  upon  thorn,  using  llio  necessary  force  to  do  so.* 
This  right  extends  to  the  owner  himself,'^  to  a  nioinber  of 
liis  family,'  to  a  tenant,'*  to  mechanics  in  charge  of  a 
building  which  they  are  erecting.*^  And  this  right  extends 
both  to  the  house,  the  office,  and  the  store." 

The  occupant  of  a  building  has  aright  to  admit  whom 
he  pleases  to  enter  and  remain,  to  expel  any  one  who 
abuses  the  privilege,  and  to  lay  hands  on  the  person  to 
expel  him,  if  necessary.  But  where  one  has  invited  or 
permitted  another  to  enter,  he  cannot  justify  an  assault  to 
expel  liini  if  the  conduct  for  which  the  person  is  sought 
to  bo  forcibly  expelled  was  occasioned  by  the  owner's 
abuse.''  Where  a  person  enters  a  dwelling  with  violence, 
lie  may  be  ejected  by  force  without  being  first  requested 
to  leave.^  But  if  ho  enters  quietly,  he  must  first  be  re- 
quested to  leave.^  Although  a  right  of  way  with  gates 
restricts  the  use  to  that  extent,  tho  removal  of  the  gates 
does  not  work  such  an  immediate  and  absolute  forfeiture 


» Woodman  v.  Howell,  45  111.  367; 

02  Am.  Dec.  221;  Boecher  i\  Parmele, 
D  Vt.  352;  31  Am.  Dec.  633;  People 
V.  rayno,  8  Cal.  341;  People  v.  Batcli- 
cldor,  27  Cal.  69;  McCarthy  v.  Fre- 
iiiont,  23  Cal.  100;  Pitford  v.  Arm- 
strong, Wright,  94;  Sliaw  v.  Chartie, 

3  Car.  &  K.  21;  Mugfonl  v.  Richard- 
.-oil,  6  Allen,  70;  83  Am.  Dec.  617. 
But  if  he  use  more  force  than  ia  neces- 
sary he  becomes  a  trespasser  ub  initio: 
Jducs  V.  dones,  71  111.  502;  Abt  v. 
Burgheim,  80  111.  92. 

'  I'arsons  v.  Brown,  15  Barb.  590, 
and  cases  in  last  note. 

^  Tribble  v.  Frame,  7  J.  J.  Marsh. 
5!)9;  23  Am.  Dec.  439. 

»  Corey  v.  People,  45  Barb.  262. 

''  United  States  v,  Bartlo,  1  Cranch 
('.  C.  236. 

'■  Woodman  v.  Howell,  45  111.  307; 
!)2  Am.  Dec.  221.  Ia  Morgan  v.  Dur- 
ftc,  01)  Mo,  409,  33  Am.  Rep.  508,  the 
ciiurt  say:  "The  third  instruction  for 
the  plaintiff  was  erroneous,  because 
while  recognizing  the  riglit  of  defend- 
ant to  use  a  deadly  weapon  in  defense 
111  his  person  against  threatened  dan- 
ger of  greater  personal  injury  even  to 


tho  extent  of  taking  tlie  life  of  his  ag^ 
Bailant,  it  utterly  ignored  and  failed 
to  give  recognition  to  an  cr^ual  right 
of  defendant  to  do  the  s'lnie  tiling  in 
defense  of  his  office,  whicii  pro  fi"c  vice 
was  as  nmcli  his  dwelling  as  the  house 
ordinarily  known  by  tliat  appellation. 
And  this  riglit  of  detunding  one's 
dwelling  is  iu  some  sense  suiicrior  to 
that  of  the  defense  of  his  jierson;  for 
in  the  latter  case,  it  is  freipicntly  tho 
duty  of  the  assaulted  to  lleo  if  the 
fierceness  of  the  assault  will  permit, 
while  in  tho  former,  a  niiui  assaulted 
in  his  dwelling  is  not  oVdincd  to  retreat, 
but  may  stand  his  ground,  defend  his 
possession,  and  use  such  means  as  are 
absolutely  necessary  to  repel  tho  as- 
sailant from  his  house,  even  to  the 
taking  of  life:  Pond  c.  People,  8  Mich. 
150,  and  cases  cited;  3  (Jrcenl.  Ev., 
sees.  05,  117;  State  v.  Patterson,  45 
Vt.  308;  12  Am.  Rep.  200;  Parsons  v. 
Brown,  15  Barb.  590.'" 

'  Watrous  v.  Steel,  4  Vt.  629;  24 
Am.  Dec.  648. 

8  TuUay  v.  Reed,  1  Car.  &  P.  6. 

9Tullay  V.  Reed,  1  (.'ar.  &  P.  6; 
State  V.  Woodward,  50  N.  H.  527. 


1050 


ASSAULT   AND    BATTERY. 


1814 


as  to  justify  tlie  uso  of  force  to  tho  extent  of  an  assault 
and  battery  to  prevent  tho  further  uso  of  tho  way.'  Where 
one  has  entered  another's  houso  for  a  hiwful  purpose,  ho 
may  not  be  ejected  until  that  purpose  is  accomplished;  as, 
for  example,  a  person  who  enters  tho  office  of  a  public 
officer,-  or  one  who  has  entered  a  dwelling  to  serve  a  sub- 
pa-na.''  If  a  chattel,  sold  on  condition  that  until  paid  for 
no  title  shall  vest  in  tho  purchaser,  and  that  if  not  paid 
for  as  agreed  the  seller  shall  have  the  right  to  enter  upon 
the  premises  of  the  purchaser  and  take  the  chattel  away, 
is  taken  to  a  room  hired  by  the  puichaser  in  the  house  of 
a  third  person  Mho  has  no  knowledge  of  his  title,  tho  sel- 
ler, on  breach  of  the  condition  in  regard  to  payment,  has 
a  right  to  enter  such  house  in  a  reasonable  manner  to  get 
the  chattel;  but  if  the  purchaser  of  tho  chattel  is  absent, 
and  the  wife  of  the  owner  of  the  house,  in  tho  absence  of 
her  husband,  requests  the  seller  to  wait  two  hours  until 
the  purchaser  returns,  it  is  not  reasonable  for  the  seller 
to  push  the  wife  aside  and  enter,  and  if  ho  does  so,  an 
action  may  bo  maintained  against  him  for  an  assault, 
although  ho  shows  tho  agreement  to  her,  and  tells  her  for 
what  he  has  come.''  An  owner  of  land  who  forcibly 
enters  thereon,  and  ejects,  without  unnecessary  force,aten- 
ant  at  sufferance,  who  has  had  reasonable  notice  to  quit, 
is  not  liable  to  an  action  for  an  assault.*^  If  a  tenant  at 
will  surrenders  the  premises  by  an  express  agreement 
with  the  owner,  and  vacates  iV  dm  with  his  family  and 
goods,  leaving  behind  a  person  who  has  occupied  the 
premises  with  him  by  his  permission,  but  without  the 
owner's  knowledge  or  consent,  the  owner  is  not  liable  to 


'  McMillan  v.  Cronin,  75  N.  Y.  474. 

'•'Any  person  liaa  a  right,  though 
merely  from  motives  of  curiosity,  to 
enter  tho  office  of  a  clerk  of  court, 
when  open  for  public  l)usiness,  and 
remain  so  long  as  he  conducts  himself 

Eroperly,    and  does  not   impede   the 
usinesa;  and  au  action  of   trespass 


will  lie  against  a  clerk  who  ejects  him 
therefrom:  O'Hara  v.  King,  52  111, 
303. 

niagar  v.  Danforth,  20  Barb.  10; 
8  How.  Pr.  16. 

*  Drury  t'.  Hervey,  126  Mass.  519. 

*Low  V.  Elwell,  121  Mass.  309;  23 
Am.  Rep.  272. 


1S15 


ASSAULT   AND   BATTERY. 


§  1050 


sets  him 
52  111. 


519. 
309; 23 


iin  action  for  nn  nsaault  if  ho  ejects  such  person  after 
request  iind  refusal  to  loavo  the  promises,  using  no  uni'ou- 
sonablo  force.'  If  the  owner  of  hind  wrongfully  litld  by 
another  eiUors  and  expels  the  occupant,  but  makes  use  of 
no  more  force  than  is  re;i.->ouably  necessary  to  accomplish 
this,  ho  will  not  bo  liable  to  an  action  of  trespass  fjnarc 
chusmii  fi'cgif,  nor  for  assault  and  battery,  nor  for  injury  to 
the  occupant's  goods,  although  in  order  to  effect  such  ex- 
pulsion and  removal  it  becomes  necessary  to  use  so  much 
force  and  violence  as  to  subject  him  to  indictment  at  com- 
mon law  for  breach  of  the  peace,  or  under  the  statute  for 
making  a  forcible  entry.''  But  a  person  cannot  justify  an 
assault  by  showing  that  he  had  a  right  to  enter  the  plain- 
titr's  land  to  remove  his  property,  but  the  plaintiff  with- 
stood his  entry.'  A  statute  making  it  a  misdemeanor  for 
one  to  go  on  the  cultivated  lands  of  another,  and  refuse 
to  depart  therefrom  when  so  requested  by  the  owner,  does 
not  deprive  the  owner  of  his  common-kw  right  to  expel 
with  reasonable  force  a  trespasser  on  his  land  who  refuses 
to  leave  on  request.'*  A  person  is  not  justified  in  entering 
the  h;nd  of  another  against  his  will  for  the  purpose  of  fox- 
hunting.'' The  occupant  of  part  of  a  highway  for  purpose 
of  a  funeral  under  his  control  has  a  right  to  direct  the 
order  in  which  the  carriages  shall  form  in  the  procession, 
and  the  drivers  thereof  have  a  right  to  follow  such  direc- 
tions. A  hackman  has  a  right  to  use  all  reasonable  force 
to  prevent  another  from  occupying  a  position  in  a  funeral 
procession  to  which  he  has  been  assigned  by  the  one  in 
charge  thereof." 

Illt'strattons.  —  In  an  action  of  assault  and  battery  against 
an  olliccr  for  forcing  a  door  and  removing  a  covering  from 
plaintiff's  face  in  order  to  identify  her  so  as  to  make  service 


'  Stono  V.  Lahey,  133  Mass.  426. 
'Manning  v.  Brown,  47  Md.  506. 


*  Paul  V.  Summerhayes,  L.  R.  4  Q. 
B.  Div.   9;    L.   J.   48    M.  C.   33;  27 


sCiiurchill  V.  Hulbert,  110  Mass.  42;    Week.  Rep.  215. 
14  Ain.  Rep.  578.  "Goodwin  v.  Avery, 

*  Fossbiuder  v.  Svitak,  16  Neb.  499.    68  Am.  Dec.  410. 


26  Coou.  585; 


§  1057 


ASSAULT   AND   BATTERY. 


1816 


upon  her,  held,  that    defendant  was  justified  in   using   suffi- 
cient  force   to  secure  an  identification:     Hull  v.  Bartlett,   49 
Conn.  64.     Deceased,  who  was  in  the  habit  of  carrying  con- 
cealed weapons,  was  a  dangerous   man,  and   had   previously 
made  violent  threats  against  defendant,  entered  defendant's 
oflice,  commenced   an  angry  altercation   with   him,  and  when 
ordered   to   leave,  refused,  in  an  angry  and  abusive  manner. 
Defendant  attemptf^d  to  put  him  out  by  force;  deceased  caught 
defendant  by  the  throat,  choking  him  and  pulling  him  toward 
the  door,  when  defendant,  in  attempting  to  stay  himself,  placed 
his  hand  upon  a  notary's  seal  near  by,  and,  raising  it,  struck 
deceased  on  the  head,  from  which  blow  he  fell  out  of  the  door, 
and  shortly  after  he  died,  either  from  the  blow  or  the   fall  on 
the  pavement.     Held,  that  the  refusal  to  instruct  the  jury  to 
render  a  verdict  for  defendant  on  this  state  of  facts  was  error: 
Morgan  v.  Durfce,  69  Mo.  469;  33   Am.  Rep.  508.     The  plain- 
tiff" went  on  defendant's  premises  with  a  sled,  and  loaded  it 
with  the  defendant's  slabs,  without  right.     Held,  that  the  de- 
fendant might  repossess  himself  of  the  slabs,  using  sufiicient 
force  against  the  plaintiff's  person  to  enable  him  to  retake  them: 
Johnson  v.    Perry,   56  Vt.    703;  48   Am.    Rep.   826.     A   went 
to  the  house  of  B  to  demand  a  debt  which  B  said  he  could  not 
pay;  angry  words  passed,  and  B  told   A  to  leave  his  house; 
this  A  refused  to  do  unless  he  was  paid.     Upon  this,  B  sent  for 
a  police-officer,  and  had  A  locked  up  in  the  watch-house.    Held, 
that  if  A  was  making  a  disturbance,  B  would  have  been  justi- 
fied in  turning  him  out  of  his  house,  but  that  he  was  not  jus- 
tified in  imprisoning  him:  Green  v.  Bartram,  4  Car.  &  P.  308. 
A  was  on  land,  claiming  it  under  a  contract  of  purchase.     The 
vendor  and  his  wife  attempted  forcibly  to  eject  A,  who  forcibly 
resisted.     Held,  in  the  vendor's  wife's  assault  suit,  that  it  was 
error  to  ignore  the  fact  that  A  claimed  title:  Franck  v.  Wiegert, 
56  Mich.  472. 


§  1057.  Preventing  Breach  of  Peace. — One  may  jus- 
tif}'^  force  used  in  a  forcible  interference  to  prevent  a 
breach  of  the  peace.*  But  where  a  self-constitu+,ed  vigi- 
lance committee  fiogged  a  disreputable  character  who 
refused  to  leave  town  as  ordered,  it  was  held  that  he  was 
entitled  to  damages  irrespective  of  the  motives  of  the 
wrong-doers,  and  of  his  own  calling  or  condition  in  life." 

1  Mcllen  V.  Thompson,  32  Vt.  407;       » Boyle    v.    Case,    18    Fed.    Rep. 
Timothy  v.  Simpson,  G  Car.  &  P.  500;    880. 
Nodeu  V.  JohasoQ,  16  Q.  B.  218. 


1817 


ASSAULT    AND    BATTERY.  §§  1058-1060 


§  1058.  In  Domestic  Relations.  —  In  certain  relations 
a  person  may  use  force  without  being  liable  for  assault. 
For  example,  the  master  of  a  ship  is  allowed  to  flog  a  sailor 
ill  proper  cases;^  and  a  father  may  administer  moderate 
chastisement  to  a  child;^  or  a  school-master  to  a  scholar.^ 

§  1059.  Innkeepers  —  Common  Carriers  —  Religious 
Meetings,  etc. — An  innkeeper  may  eject  from  his  house 
a  person  to  whom  he  owes  no  duty  to  provide  shelter,  or 
who  misconducts  himself  there,*  and  a  common  carrier 
has  similar  rights.^  A  person  disturbing  a  religious 
meeting  may  be  ejected  with  force  suflicient  for  the  pur- 
pose." But  before  a  person  can  be  turned  out  of  a  church, 
he  should  be  requdsted  to  retire.' 

§  1060.  Damages — Measure  of. — The  plaintiff  in  such 
actions  may  recover  such  ^^eneral  damages  as  he  may  show 
he  has  suffered  from  the  assault.^  He  may  recover  w^hen 
an  assault  is  proved,  though  no  special  damage  is  shown." 
lie  may  recover  for  his  loss  of  time,*'^jfor  the  amount  of 
surgeon's  bill  incurred  for  treating  his  injuries,  though 
voluntarily  paid  before  trial  by  the  trustees  of  the  town- 
ship, to  whom  he  is  not  legally  liable  to  refund  the  amount." 
And  he  may  recover  for  not  only  his  direct  pecuniary 
loss,  but   for   personal  sufi^eriug,^^   for  mental  anguish,'' 

'  United  States  v.  Hunt,  2  Story, 
120;  Bangs  v.  Little,  1  Ware,  506; 
Brown  I'.  Howard,  14  Johns.  119.  See 
Div>iDnIII.,  Ships  and  Shipping. 

'^  See  Division  I.,  Parent  and  Child. 

'  See  Division  IV.,  Schools. 

*  See  post.  Bailments  —  Innkeepers. 

*  See  pout,  Bailments  —  Common 
Carriers.  A  lewd  woman,  by  artifice, 
gained  admission  to  the  ladies'  wait- 
mg-room  of  defendant's  station  some 
hours  before  the  train  was  to  leave, 
which  she  said  she  wished  to  take, 
and  was  there  guilty  of  misconduct, 
and  was  removed  by  the  police,  but 
without  force,  at  request  nf  defendant's 
agent.  Held,  that  she  w  >..  entitled  to 
only  nominal  damages,  if  any:  Beeson 
V.  K.  R.  Co.,  G2  Iowa,  173. 

6  WaU  V.  Lee,  U  N.  Y.  Ul;  Beck- 


72; 

Am. 


ett  V.  Lawrence,  7  Abb.  Pr.  (N.  S.) 
403;  McLain  v.  ■Matlock,  7  Ind.  525; 
65  Am.  Dec.  746. 

'  Ballard  v.  Bond,  1  Jur.  7. 

*  Anderson  v.  Stone,  10  Minn. 
Coffin  V.  Coffin,  4  Mass.  41;   3 
Dec.  189;  Slater  v.  Rink,  18  III.  529. 

*•  Lewis  i'.  Hoover,  3  Blackf.  407; 
Andrews  v.  Stone,  10  Minn.  72. 

">Morgpnr.  Curley,  142  Mass.  107. 

"  Klein  v.  Thompson,  1 9  Ohio  St.  569. 

*'^  Smith  V.  Ilolcomb,  97  Mass.  552; 
Klein  v.  Thompson,  19  Ohio  St.  567. 
Where  a  prisoner  was  seized  by  a  mob 
and  hanged  by  his  neck  till  he  was 
almost  senseless,  to  extort  a  confession, 
it  was  held  that  fifteen  hundred  dol- 
lars was  not  excessive  damages:  Elliott 
V.  Russell,  92  Ind.  526. 

"  Smith  V.  Holcomb,  99  Mass,  552; 


1061 


ASSAULT   AND   BATTERY. 


1818 


and  the  outrage  and  indignity  which  have  accompanied 
the  injury.'  He  cannot  recover  his  expenses  in  prosecut- 
ing the  suit,^  It  is  the  right  and  duty  of  the  jury  in  assess- 
ing damages  in  an  action  of  trespass  for  an  assault  to 
consider  what  effect  the  finding  of  trivial  damages  would 
have  to  encourage  a  disregard  of  the  laws  and  disturbances 
of  the  public  peace,  and  it  is  not  error  for  the  court  to  so 
instruct  thera.^ 


§  1061.  Aggravation  of. — In  actions  of  assault  and 
battery  where  malice  and  disregard  of  the  law  are  present, 
exemplary  damages  are  recoverable;*  although  the  defend- 
ant has  been  convicted  and  fined  for  the  same  offense.^ 
In  aggravation  of  damages,  evidence  of  previous  threats 
made  by  the  defendant  in  the  plaintiff's  presence  is 
admissible.^     So  is  evidence  of  his  conduct  and  language 


484;    Gronan  v. 


Canning  v.  Williamatown,  1  Cush.  451 ; 
Wads  worth  v.  Treat,  43  Me.  1G3;  Ford 
V.    Jones,    02  Barb. 
Kucuk,  59  Iowa,  18. 
'  McKinloy  v.  R. 
314;   24    Am.    Rop. 
Curley,  142     " 
for    assault 


R.  Co.,  44  Iowa, 
748;   Morgan  v. 

Mass.   107.     In  an  action 

and    battery  of 


an  in- 
decent nature,  plaintiff  may  recover 
for  injury  to  reputation,  social  posi- 
tion, sense  of  shame,  and  loss  of  honor: 
Wolf  V.  Trinkle,  103  Ind.  355. 

^  Howell  ('.  Scoggius,  48  Cal.  355. 
The  jury  may  allow,  as  making  up  the 
damages,  reasonable  counsel  fees;  but 
no  evidence  can  be  introduced  of  the 
value  of  the  services:  Stevenson  v. 
Morris,  37  Ohio  St.  10;  41  Am.  Rep. 
481.  Where  it  appeared  that  there 
had  been  a  former  trial  of  the  cause, 
and  by  reason  of  the  death  of  one 
of  the  jurors  no  verdict  was  ren- 
dered, it  was  held  that  the  jury  might 
properly  take  into  consideration  the 
expenses  of  such  former  trial  in 
estimating  the  damages:  Noyes  v. 
Ward,  19  Conn.  250.  A  assaulted  B, 
and  commenced  an  affray  with  him, 
in  which  B  tired  a  pistol  and  injured 
C.  Held,  that  if  C  brought  an  action 
against  B  and  recovered  damages  for 


the  injury,  this  would  not  give  B  a 
legal  right  to  recover  that  amount,  as 
so  much  to  be  reimbursed  to  him,  as 
special  damages,  in  an  action  against 
A:  Whatley  v.  Murrell,  1  Strob.  389. 

»  Beach  v.  Hancock,  27  N.  H.  223; 
59  Am.  Dec.  373. 

*  Smithwick  v.  Ward,  7  Jones,  64; 
75  Am.  Dec.  453;  Rowe  v.  Moses,  9 
Rich.  423;  G7  Am.  Dec.  560;  McCarthy 
V.  Niskern,  22  Minn.  90;  Wiley  >: 
Keokuk,  6  Kan.  94,  111;  Guengerich 
0.  Smith,  36  Iowa,  587;  Drohu  v. 
Brewer,  77  111.  280;  Elliott  v.  Van 
Buren,  33  Mich.  49;  20  Am.  Rep.  008; 
Rcddin  V.  Gates,  52  Iowa,  210;  Hen- 
eky  V.  Smith,  10  Or.  349;  45  Am. 
Rep.  143.  Contra,  Tabor  v.  Hutson,  5 
Ind.  322;  61  Am.  Dec.  96;  Fay  v. 
Parker,  53  N.  H.  342;  16  Am.  Rep. 
270;  Huber  v.  Teuber,  3  McAr.  484;  36 
Am.  Rep.  110. 

"Cor win  v.  Walton,  18  Mo.  71;  59 
Am.  I^ec.  285;  Hoadley  v.  Watson,  45 
Vt.  289;  12  Am.  Rep.  197.  But  such 
fact  is  admissible  in  mitigation:  Smith- 
wick V.  Ward,  7  Jones,  64;  75  Am. 
Dec.  453. 

« Sledge  V.  Pope,  2  Hayw.  (N.  C.) 
402.  But  see  Hallowell  v.  HallowelL 
1  T.  B.  Mon.  130. 


was 


1818 


1819 


ASSAULT    AND   BATTERY. 


§  10G2 


at  the  time.^  And  all  the  circumstances  may  ho  shown 
in  aggravation  of  damages;"  and  of  other  trespasses  to  his 
person  or  that  of  his  family;^  and  the  record  of  defend- 
ant's conviction  on  his  plea  of  guilty  in  a  criminal  prose- 
cuiion.*  Evidence  of  express  malice  is  admissible,  though 
not  averred  in  the  petition.^ 

Illustrations.  —  A  pregnant  woman  was,  without  provoca- 
tion, assaulted  by  a  drunken  person  who  threatened  her  with  a 
drawn  revolver,  and  so  frightened  her  that  she  ran  and  fell,  and 
three  days  thereafter  was  delivered  of  a  dead  child.  Held,  to 
be  entitled  to  exemplary  damages:  Barbee  v.  Reese,  GO  Miss.  906. 
The  defendant  broke  open  a  house  occupied  by  the  plaintiff  and 
his  son  and  their  families,  and  beat  the  plaintiff  and  his  son. 
Held,  that  evidence  was  admissible  to  show  that  the  son's  wife 
was  in  travail,  and  that  the  defendant  was  informed  thereof 
before  he  entered  the  house,  though  this  matter  of  aggravation 
was  not  alleged  in  the  declaration:  Sampson  v.  Henry,  11  Pick. 
379.  Defendant,  without  provocation,  assaulted  plaintiff  by 
striking  him  on  the  head  with  a  bottle,  in  a  public  dining-room. 
Held,  that  a  verdict  of  one  thousand  dollars  would  not  he  dis- 
turbed, although  exemplary  damages  were  therein  included; 
that  in  such  a  case  exemplary  damages  were  properly  recover- 
able, although  no  actual  malice  was  shown:  Borland  v.  Barrett, 
76  Va.  128;  44  Am.  Rep.  152.  At  the  close  of  the  trial  of  an 
action  of  trespass,  and  immediately  upon  the  adjournment  of 
the  court  thereafter,  in  the  court-room,  and  in  the  presence  of  a 
largo  number  of  persons,  one  of  the  parties  to  the  suit  deliber- 
ately spat  in  the  face  of  the  other.  Held,  in  an  action  brought 
by  the  injured  party  against  the  perpetrator  of  the  act,  that  the 
case  was  a  most  fit  one  for  the  award  of  punitive  damages:  At- 
com  v.  Mitchelk  63  111.  553. 

§1062.  Mitigation  of. — Provocation  may  be  given  in 
evidence  in  mitigation  of  damages,"  even  though  not  suflfi- 


(N.  C.) 
[allowell. 


•  Sliafcr  v.^  Smith,  7  Har.  &  .T.  67. 
In  a  woman's  action  for  pointing  a 
pistol  at  her  when  pregnant,  held,  that 
(lufuiulatit's  drunkenness  was  no  ex- 
cuse, hut  aggravated  the  assault: 
Ileoso  r.  Barhee,  Gl  Miss.  181. 

'  Root  V.  Sturdivant,  70  Iowa,  55. 

'Sihafor  v.  Smith,  7  Har.  &  J. 
G7. 

'  Hamm  v.  Romine,  98  Ind.  77; 
Green  v.  Bedell,  48  N.  H.  54C;  C'orwin 


V.  Walton,  18  Mo.  71;  59  Am.  Dec. 
285 

^  Klein  t;.  Thompson,  19  Ohio  St.  5G9. 

«Leo  V.  VVoolsey,  19  Johns.  319;  10 
Am.  Dec.  230;  Bartram  v.  Stone,  31 
Conn.  159;  Corcoran  r.  Harran,  55 
Wis.  120.  Defendant  may  show  that 
plaintiff  was  a  quarrelsome  man,  who, 
on  another  occasion,  had  assaulted 
defendant:  Galbraith  v.  Flemiuj;,  00 
Mich.  403. 


§  1062 


ASSAULT   AND    BATTERY. 


1820 


cient  for  justification.^  But  it  must  have  been  so  recent  and 
immediate  as  to  raise  the  presumption  that  the  violence 
done  was  committed  under  its  influence.^  So  evidence 
that  on  previous  occasions  the  plaintiff  had  slandered  and 
abused  him  is  not  admissible;'  nor  that  the  day  before  the 
plaintiff  accused  him  of  theft;"*  nor  does  a  libel  published 
in  the  morning  mitigate  an  assault  on  the  libeler  on  the 
afternoon  of  the  same  day.°  So  it  is  not  competent^  as 
an  excuse  for  a  battery,  to  prove  that,  several  days  before 
it  was  committed,  plaintiff  had  insulted  defendant's  wife, 
or  threatened  defendant.^  The  question  should  be,  not 
how  many  hours  have  elapsed  since  the  provocation  was 
given,  but  whether,  in  view  of  the  circumstances  of  the 
case,  the  party  who  made  the  assault  had  a  reasonable 
time  to  cool  his  bloodJ  Words  spoken  cannot  be  consid- 
ered in  mitigation  of  actual  damages;®  nor  can  a  libel 
published  by  the  plaintiff  of  the  defendant  be  set  up  by 
way  of  counterclaim.''  But  the  defendant  may  show  in 
mitigation  of  damages  that  he  has  already  been  convicted 
and  fined  for  the  same  assault.^"  Where  a  master  in  a  lit 
of  passion  assaults  his  servant  for  a  clear  neglect  of  duty, 
the  circumstances  may  be  considered  in  mitigation  of 
damages." 

^  Brown  v,  Swineford,  44  Wis.  212; 
28  Am.  Rep.  582. 

-Leo?'.  Woolsey,  19  Johns.  319;  10 
Am.  Dec.  230;  Jacaway  v.  Dula,  7 
Yerg.  82;  27  Am.  Dec.  4<»2;  Cushman 
V.  lingers,  1  Story,  91 ;  Castncr  r.  Slikcr, 
33  N.  J.  L.  95;  Waters  v.  Brown,  3 
A.  K.  Marsh.  559;  Dolau  v.  Fagan, 
C3  Barb.  73;  Corning  v.  Corning,  0  N. 


'Fullerton  v.   Warrick,   3   Blackf. 
219;  25  Am.  Dec.  99. 

*  Jacaway  v.  Diila,  7  Ycrg.  82;  27 
Am.  Dec.  492. 

*  Keiser  »•.  Smith,  71  Ala.  481;  46 
Am.  Hep.  342. 

*•  Heiser    v.    Loomis,    47   Mich.    10; 
Thrall  v.  Knapp,  17  Iowa,  408. 

'  Dolan  V.  Fagan,  03  Barb.  73;  Stet- 
Y.  97;  Martin  r.  Minor,  50  Miss.  42;  lar  v.  Nellis,  GO  Barb.  524;  Stellar  r. 
Boniao  v.  Caleilonio,  144  Mass.  299.  Nellis,  42  How.  Pr.  103. 
Where  an  interval  of  two  months  oc-  >*  Scott  v.  Fleming,  10  111.  App.  5.39. 
curred  between  certain  declarations  *  MacDougall  ?•.  Maguire,  35  Ciil. 
of  the  plaintiif  in  a  suit  for  an  assault  274;  95  Am.  Dec.  98. 
and  battery,  which  were  offered  in  '"  Phillip  v.  Kelly,  29  Ala.  G2S; 
evidence  in  mitigation  of  damages,  Smithwick  i\  Ward,  7  Jones,  04;  75 
and  the  actual  assault,  they  will  be  Am.  Dec.  453;  B^lanagan  ?'.  Womauk, 
admissible,  unless  shown  to  have  been  54  Tex.  45.  Contra,  llonaker  v.  Howe, 
communicated  to  the  defendant  only  19  Gratt.  50;  Reddiu  v.  Gates,  52 
immediately  before  the  assault:  Gaith-     Iowa,  210. 

era  v.  Blowers,  11  Md.  530.  "  Ward  v.  Blackwood,  41  Ark.  295; 

48  Am.  Rep.  41. 


1820 


1821 


ASSAULT   AND   BATTERY. 


§1063 


ecent  and 
I  violence 

evidence 
lered  and 
)efore  the 
published 
er  on  the 
petent;  as 
lys  before 
nt's  wife, 
d  be,  not 
ation  was 
es  of  the 
easonable 
)e  consid- 
n  a  libel 
set  up  by 

show  in 
convicted 
pr  in  a  fit 
;  of  duty, 
;ation  of 

,   3  Blackf. 

Icrg.  82;  27 

Via.  481;  46 

1   Mich.   10; 
408. 

fl).  73;  Stet- 
I;  Stellar  c. 

[1.  App.  r.;59, 

ire,   35   Cal, 

)  Ala.  028; 
iiies,  64;  75 
Woinack, 
cer  V.  Howe, 
,    trates,   52 

I  Ark.  295; 


In  an  action  for  indecent  assault,  evidence  of  plaintiflfs 
lewdness  with  other  men  is  admissible  in  mitigation  of 
damages/  But  the  defendant  cannot  show  that  from  the 
intemperate  habits  of  the  other  party  the  injury  was  more 
aggravated  than  it  would  have  been  upon  a  person  of 
temperate  habits;''  nor  the  bad  character  of  the  plaintiff, 
especially  where  such  character  had  no  connection  with 
the  assault.^  So  evidence  is  not  admissible  that  the  plain- 
tiff "was  a  lazy  vagabond,  who  would  not  work  if  he  could 
help  it;  that  money  could  not  be  made  out  of  him  by  legal 
process;  that  he  had  been  indebted  to  the  defendant  a 
long  time,  and  would  not  pay;  that  the  defendant,  on  the 
morning  of  the  day  on  which  (in  the  evening)  the  assault 
was  committed,  had  offered  him  ten  dollars  per  hour  if  he 
would  work  for  him  in  payment  of  said  indebtedness,  and 
he  had  refused  to  do  it";'*  nor  of  the  number,  age,  and 
condition  of  defendant's  family,  where  the  ofier  of  the 
proof  did  not  show  that  all  the  defendant's  means  and 
earnings  were  required  to  provide  for  their  support.^  The 
facts  relied  on  for  a  justification  must  be  specially  pleaded.® 

§  1063.  Evidence. — Remarks  made  during  and  imme- 
diately after  the  assault  are  admissible  as  part  of  the  res 
gcstxJ  Evidence  of  the  pecuniary  circumstances  and  so- 
cial rank  of  the  defendant  is  admissible  on  the  question 
of  damages.®     The  defendant's  wealth  may  be  proved  by 

I 

'  Gulorettc  v.  McKinley,   27  Hun,  Harris  v.  Marco,  16  S.  C  575;  Bell  v. 

320;  Watry  v.   Ferber,   18  Wis.  500;  Morrison,  27  Miss.  08;  Brown  v.  Evans, 

80  Am.  Dec.  789.  8  Saw.  488;  Jones  v.  Jones,  71  111.  52; 

^Littlehale  v.   Dix,   11    Cash.  304;  Barnes  r.  Martin,  15  Wis.  240;  82  Am. 

Wheat  V.  Lowe,  7  Ala.  31 1.  Dec.  070;  Birchard  v.  Booth,  4  Wis.  67; 

3  Mi-Kenzie  v.  Allen,  .1  Strob.  546.  Browix  v.  Swineford,  44  Wis.  291;  28 


*  Ward  V.  State,  28  Ala.  53. 
^  Schmidt  v.  Pfeil,  24  Wis.  452. 
"  Kouigsherger  v.    Harvey,    12  Or. 
28C;  Atkinson  v.  Harran,  68  Wis.  405. 


Am.  Rep.  582;  McCarthy  v.  Niskern, 
22  Minn.  90;  Heneky  v.  Smith,  10 
Or.  349;  45  Am.  Rep.  143;  Dailey  v. 
Houston,  58  Mo.  361;  Gore  v.  Chad- 


'  Shirley  v.  Billings,  8  Bush,  147;  8  wick,  6  Dana,  477.     Compare  Cochran 

Am.  Rep.  451;  Colquitt  v.  State,  34  v.  Ammon,  16  III.  316;  McNamara  v. 

Tox.  550.  King,  7  111.  432.    Contra,  Taber  v.  Hut- 

s  Howe  V.  Moses,  9  Rich.  423;   67  son,  5  lud.  322;  61  Am.  Dec.  90;  Guen- 

Am.  Dec.  560;  Johnson  v.  Smith,  64  gerech  ?-.  Smith,  34  Iowa,  348;  Hare 

Mo.  553;  Gaithsr  v.  Blowers,  11  Md.  v.  Marsh,  61  Wis.  435;  50  Am.  Rep. 

53G;  Sloan  v.  Edwards,  61   Md.  89;  141. 


§  10G3 


ASSAULT   AND   BATTERY 


1822 


evidence  of  reputation.^  So  evidence  is  admissible  on  the 
part  of  the  plaintiff  that  he  was  held  and  detained  by  the 
defendant;"  of  previous  threats  of  the  defendant  to  make 
the  assault;'"*  that  he  complained  of  the  injury  recently 
after  it  was  received;^  of  ill-will  and  malice  on  the  part  of 
the  defendant;^  that  plaintiff  was  correct  in  the  assertion, 
in  consequence  of  Iiis  persistence  in  which  the  assault  was 
made  by  defendant,"  or  of  obviously  probable  effects  of  a 
battery,  tliough  not  laid  in  the  declaration,  as  sickness  fol- 
lowing a  boating.^  So  evidence  is  admissible  of  previous 
difficulties  between  the  parties,  and  threats  by  the  plain- 
tiff;* of  the  turbulent  and  quarrelsome  disposition  of  the 
plaii  ad  that  this  was  known  to  the  defendant;"  that 

plai  "'-  ,vitness,  who  joined  in  the  assault,  had  been 
ordered  by  defendant  not  to  enter  the  land,  and  that  the 
wiiiK  i,  Tust  1  ^''ore  the  assault,  l^old  a  third  person  to 
wait  and  sec  somj  fun;*"  of  a  permanent  bodily  infirmity 
produced  or  aggravated  thereby,  and  statements  made  by 
plaintiff  at  various  times  showing  his  present  feelings  and 
sufferings,  are  admissible  in  evidence."  Evidence  of  the 
relationship  and  conduct  of  the  plaintiff  toward  the  de- 
fendant, and  of  the  latter's  chastity  and  good  moral  char- 
acter, is  admissil)le  in  an  action  for  indecent  assault." 
Evidence  of  defendant's  good  character  is  inadmissible.'' 


'  Draper  v.  Baker,  61  Wis.  450;  50 
Am.  Rep.  14.3. 

*  Logan  V.  Austin,  1  Stew.  476. 

^  Bar  tram  v.  Stone,  31  Conn.  159; 
MacDougall  v.  Maguire,  35  Cal.  274; 
95  Ain.  Dee.  98;  Carverno  v.  Jones, 
61  N.  II.  023. 

*Yo3t  V.  Ditch,  5  Blackf.  184; 
Worely  v.  Persons,  28  N.  Y.  344;  84 
Am.  Dec.  340. 

"  Aulger  V.  Smith,  34  111.  534;  Jew- 
ett  V.  Banning,  21  N.  Y.  27. 


6  Marker  v.  Miller,  9  Md.  338. 

'  Avery  v.  Ray,  1  Mass.  1 2. 

*  Murphy  v.  Dart,  42  How.  Pr. 
31. 

9  Knight  V.  Smythe,  57  Vt.  529. 

>"  White  V.  Swain,  138  Mass.  325. 

^'  Johnson  v.  McKee,  27  Mich. 
471. 

12  Schuek  V.  Hagar,  24  Minn.  339. 

"  Brown  v.  Evans,  8  Saw.  488;  17 
Fed.  Rep.  91f . 


TITLE  XL 

FAISE  AEREST  AND   IMPEISONMENT. 


FA 


prison 
freedo 
motioi 
confiiK 
the  op 
be  acti 

'  Crow( 

Bird  V.  J 
Lower,  SI 
Allen  V.  I 
See  note 
Dec.  258h 


TITLE    XI. 

FALSE  AEEEST  AND  IMPBISONMENT. 


CHAPTER  LIT. 

PALSE  ARREST  AND  IMPRISONMENT. 


§1064. 

§  1065. 

§  1066. 

§1067. 

§1068. 

§1069. 

§  1070. 

§  1071. 

§  1072. 
§  1073. 
§  1074. 
§  1075. 
§  1076. 
§  1077. 
§  1078. 
§  1079. 


False  imprisonment  —  What  is. 

Restraint  without  process  —  When  pehnitted. 

Imprisonment  of  insane  persons. 

Restraint  with  process  — In  general. 

In  civil  cases. 

Arresting  wrong  person. 

Void  process. 

Defective  process. 

Arrest  by  military  order.. 

Arrest  without  warrant  —  By  officer. 

By  private  person. 

Who  liable  —  Officer  issuing  process. 

Party  causing  arrest. 

Damages. 

Evidence. 

Pleading. 


§1064.  False  Imprisonment  —  What  is.  — False  im- 
pnsonment  consists  in  unlawfully  restraining  a  person's 
freedom  without  legal  authority.^  If  his  freedom  of  loco- 
motion  IS  interfered  with,  it  matters  not  whether  he  is 
confined  in  a  room,  or  a  building,  or  on  the  streets,  or  in 
the  open  air.  Nor  is  it  essential  that  the  person  shall 
be  actually  taken  hold  of  or  assaulted.'    "  It  is  the  fact 


Crowell  V.  Gleason,  10  Me.  325; 
Bird  «.  Jones  7  Q.  B.  742;  Colter  v. 
a7^^'  ^I  ^^-  285;  9  Am.  Rep.  735; 
Alleni-.  R.  R.  Co.,  L.  R.  6Q.U  65 

Iter^271^'*^^'"  "•  ^^*^  ^  ^ 

m 


'  Floyd  V.    State,  12  Ark.  43:  54 
Am.  Dec.  250. 

*  Grainger  w.  Hill,  4  Bing.  N.  O.  212- 
Mowry  i;.  Chase,  100  Mass.  79;  Ahern 
«.  Colhns,  39  Mo.  145;  Hawk  v. 
Ridgway,    33    lU.    473;    BisaeU   v. 


§1064 


FALSE   ARREST   AND  IMPRISONMENT. 


1826 


of  compulsory  submission  which  brings  a  person  into 
imprisonment;  and  impending  and  tlircatened  physical 
violenoo,  which,  to  all  appearance,  can  only  bo  avoided 
by  submission,  operates  as  efPectually,  if  submitted  to,  us 
if  the  arrest  had  been  forcibly  accomplished  without  sucli 
submission.  There  are  cases  in  which  a  party  who  docs 
not  submit  cannot  bo  regarded  as  arrested  until  his  per- 
son  is  touched,  but  when  lie  does  submit,  no  such  neces- 
sity exists."  *  It  is  an  imprisonment  to  notify  a  person 
that  he  is  arrested,  he  submitting  and  accompanying  the 
officer;^  to  stop  and  prevent  one  from  passing  along  a 
highway;'  to  tell  one  on  a  ferry  that  he  cannot  leave 
it  until  a  certain  demand  is  settled;*  or  to  prevent  ono 
from  leaving  a  house  or  a  room  without  being  accom- 
panied by  an  officer;*  or  to  call  a  person  out  to  the  gate 
of  his  house,  and  by  threats  make  him  confess  that  he  is 
guilty  of  falsehood,  and  compel  him  to  drink  with  his 
assailants;"  or  to  lay  the  hand  on  a  person  to  arrest  him, 
even  though  he  is  not  stopped  or  held  an  instant;  ^  or  to 
lock  the  door  of  the  room,  telling  him  he  is  arrested.* 

But  there  must  be  a  restriction  of  the  right  of  locomo- 
tion; the  party's  liberty  must  bo  restrained,®  and  the 
party  must  be  aware  of  it.'"  It  is  not  an  imprisonment  to 
prevent  a  person  from  leaving  a  place  by  one  door,  there 


Gold,  1  Wend.  210;  19  Am.  Dec. 
480;  Whithead  v.  Keyes,  3  Allen, 
495;  81  Am.  Dec.  672;  Warner  v, 
Pviddiford,  4  Com.  B.,  N.  S.,  205; 
Murphy  v.  Counters,  1  Harr.  (Del.) 
143;  Johnson  v.  Tompkins,  1  Bald. 
671;  Emery  v.  Chesloy,  18  N.  H.  198; 
Pike  V.  Hanson,  9  N.  H.  491;  Field  v. 
Ireland,  21  Ala.  240;  Courtoy  v  Do- 
zicr,  20  Ga.  3G9;  Searls  v.  Viets,  2 
Thomp.  &  C.  224;  Haskins  v.  Young, 
2  Dcv.  &  B  527;  31  Am.  Dec.  426. 

'  Briwhaber  v.  Stegemann,  22  Mich. 
266;  Gcnner  v.  Sparks,  1  Salk.  79. 
And  see  Arrowsmith  v.  Le  Mesurier,  2 
Boa.  &  P.  211;  Lawsou  v.  Bergines,  3 
Harr,  (Del.)  416. 

'  Brusbaber  v.  St^emano,  22  Mich. 


266;  Wood   v.    Lane,    6   Car.   &  P. 
774. 
^  Bloomer  v.  State,  3  Snecd,  66. 

*  Smith  V.  State,  7  Humph.  43. 

*  Warner  v.  Riddiford,  4  Com.  B., 
N.  S.,  206. 

^  Herring  v.  State,  3  Tex.  App.  108. 

^  Whithead  v.  Keyes,  3  Allen,  495; 
81  Am.  Dec.  672. 

8  Williams  v.  Jones,  Cas.  t.  Hardw, 
298. 

"  Hartv.  Flynn,  8  Dana,  190;  French 
V.  Bancroft,  1  Met.  502;  Russeu  v, 
Lucas,  1  Car.  &  P.  153;  Berry  ?♦.  Ad- 
amson,  6  Barn.  &  C,  628;  Hill  v. 
Taylor,  50  Mich.  549. 

'"Jones  V.  Jones,  13  Ired.  448;  Her- 
ring V.  Boyle,  1  Cromp.  M.  &.  11.  377. 


1826 


1S27 


FALSE    ARREST   AND    IMPRISONMENT.  §  1CC4 


into 

oided 

to,  a3 

t  such 

:)  docs 

is  per- 

iicces- 

pcrsou 

ng  the 

long  a 
loavo 

nt  one 

accom- 

ho  gate 

at  ho  is 

'ith  his 

;st  him, 

.j''  or  to 

,ed.« 

locomo- 
.nd  the 
ment  to 
ir,  there 

^ar.    &  !*< 

led,  G6. 
Ih.  43. 
Com.  B., 

I,  App.  108. 
lAUen,  495; 

t.  Hardw. 

[OO;  French 

1  Russen  v. 
krry  v.  Ail- 
IS;  Hill  V. 

1.  448;  Her- 
1  &.  11.  377. 


being  another  which  ho  may  use.'  A  mere  delivery  of  a 
suiiiiiions  or  citation  without  detention  of  the  person  id 
not  an  arrest.'''  Tho  distinction  between  the  civil  action 
for  malicious  jirosecution  and  the  civil  action  for  falso 
iiuprisonmcnt  is  this:  in  tho  former  the  arrest  or  im- 
pririonnient  is  under  legal  process,  but  the  action  has 
been  commenced  or  carried  on  maliciously  and  without 
probable  cause;  in  tho  latter,  the  arrest  or  imprisonment 
is  unlawful  and  without  Icj  d  authority,  and  tho  quos- 
tion  of  malice  or  probable  cause  is  not  in  issue.'*  An 
action  for  false  imprisonment  is  transitory,  and  tho  courts 
of  a  state  have  jurisdiction  of  such  an  action  brought  to 
rocover  damages  for  an  arrest  under  a  warrant  issued 
to  enforce  the  collection  of  an  illegal  tax  of  another  state.^ 

Illustrations. —  A  person  went  into  ii  bank  on  business,  and 
having  remained  after  tiic  usual  hours  for  business,  the  teller 
closed  tbe  doors  and  refused  to  let  him  depart.  JlcJd,  an  im- 
prisonment, notwithstanding  the  person  knew  the  usual  hours 
of  closing  tho  bank:  Woodward  \.WaHhhiirh,'M)Qnio,  300.  R.,  a 
constable,  having  a  warrant  for  plaintifT  and  his  sons,  issued  by 
a  justice,  met  tho  plaintifT  and  one  of  bis  sons  in  a  wagon.  R. 
paid:  "  I  have  a  warrant  for  you  and  your  two  sons."  Plaintiff 
asked  for  what.  R.  replied,  "for  stealing  pumpkins."  Plaintiff 
started  to  get  out  of  the  wagon,  and  II.  said:  "  You  can  go 
home  and  get  your  horses  put  up  and  take  your  tea  and  como 
clown."  Plain Mff  went  home,  took  his  tea,  employed  a  lawyer, 
ami  with  him  an^^  his  two  sons  Avent  to  R.'s,  and  calling  out  R., 


said 


Hen 


e's  your  prisoners." 


R.  said:  "  You  move  on  and  I 


will  overtake  you."  They  went  on,  and  R.  overtook  them  as  they 
gut  to  the  house  of  the  justice.  Tho  matter  was  then,  after 
iliscussion,  adjourned  to  another  day,  without  bail,  and  on  the 
adjounwjd  day  the  plaintiff  appeared,  an  examination  was  had.. 


'  Wright  V.  Wilson,  1  Ld.  Raym. 
739;  Bird?!.  Jones,  7  Q.  B.  742. 

-  Huntington  v.  Sluiltz,  Harp.  452; 
18  Am.  Dec.  G60;  Hart  v.  Flynn,  8 
DaiKi,  190. 

Mrolzjiilouchter  v.  Niemeyer,  64 
Wis.  ;?1();  54  Am.  Rep.  GIG;  Wentz  v. 
Bjinhiirdt,  .37  La.  Ann.  63G.  Although 
iiiic'.s  ohjcutin  procuring  an  arrest  was 
to  cul'orce  payment  of  a  debt,  an  ac- 
tion for  false  imprisonment  wdl  not 
^d  if  the  warrant  waa  a  lawful  cue. 


Au  action  for  a  malicious  prosecutioa 
affords  tho  remedy:  MuUoa  *".  Brown, 
133  Mass.  114.  See  Follows  v.  Good- 
man,  4!)  Mo.  G2.  But  false  iiuprisou- 
mcat,  it  has  been  held  in  Mas.sachu- 
setts,  will  lie  for  the  abuse  or  misuse  of 
valid  legal  i)rocess:  Wood  v.  Clraves, 
144  Mass.  Mo;  59  Am.  Rep.  95.  See 
Haekett  v.  King,  G  Allen,  58. 

*  Henry  v.  Sargeant,  13  N.  U.  321; 
40  Am.  Dec.  14G. 


§  10G4 


FALSE    ARREST   AND   IMPRISONMENT. 


1828 


and  the  juBtioo  (lischarged  the  cnpo.  Held,  that  this  showed 
nil  arrest  of  the  i)laintifr:  »SV«r^«  v.  Vietn,  2  Thoiup.  &  C. 
224.  Tlio  schooling  of  a  boy  at  a  boarding-school  not  having 
been  paid,  tho  master  refused  to  allow  him  to  return  to  his 
parents  luitil  it  was  paid.  The  boy  did  not  know  this,  but  sup- 
l)osed  liis  detention  at  the  scliool  was  according  to  the  rul 
the  school.  Held,  no  iinprisoiunent:  Hcrrinrf  v.  Ihyle,  1  Cr 
'M.  it  U.  377.  An  ollicor  went  on  board  a  ship  to  arrest  a  man. 
The  ship  cast  ofT  and  sailed  soon  after,  and  took  the  oflicer  oU' 
to  sea.  He  had  opportunity  to  leave  before  she  sailed,  but  by 
his  neglect  did  not  avail  himself  of  it.  Held,  no  imprisonment: 
Sjxxir  V.  Sponncr,  12  Met.  281.  A  procured  \i  to  assume  tho 
cilice  of  constable  and  arrest  a  boy  on  a  charge  of  breaking  a 
glass  in  his  show-ease,  and  tlio  boy  was  carried  before  C,  who 
falsely  assumed  to  act  as  justice  of  the  peace,  when  tho  form  of 
a  trial  was  gone  through,  the  boy  being  refused  tho  privilege  of 
seeing  an  attorney,  and  judgment  was  rendered  against  him  for 
three  dollars,  and  the  parties  then  threatened  him  with  ini- 
pri.soinnent  in  the  county  jail  unless  ho  could  get  two  good  men 
to  become  surety  for  him,  which  he  finally  procured,  and  wa.s 
then  released,  after  having  been  detained  about  two  ho"'-s. 
Held,  that  all  the  parties  were  liable  to  an  action  for  false 
prisonment:  Pr'nr  v.  Balky.  OG  111.  49.  Tho  gate-keepe 
an  elevated  railroad  had  been  ordered  by  tho  company  not 
to  allow  passengers  to  leave  tho  stations  unless  they  surrendered 
their  tickets  or  paid  fare.  A  passenger  on  leaving  tho  station 
refused  to  pay  his  fare  because  ho  had  lost  his  ticket.  Tho 
passenger  was  detained  by  tho  gate-keeper,  turned  over  to  a 
policc-olTicer,  locked  up  over  night  in  tho  station-house,  com- 
plained of,  and  discharged  in  tho  morning  by  the  magistrate, 
Held,  that  an  action  of  false  imprisonment  lay  against  the  rail- 
road company:  Lynch  v.  Metropolitan  etc.  R.  R.  Co.,  90  N.  Y.  77; 
4.J  Am.  liep.  141.  A,  fined  for  violation  of  a  city  ordinance, 
was  compelled  to  work  out  the  fine  by  laboring  on  the  streets. 
Held,  that  ho  could  maintain  an  action  for  false  imprisonment: 
Torhert  v.  Lynch,  07  Ind,  474.  A  locked  B  in  a  room,  and  by 
threats,  with  weapons  in  his  hand,  forced  B  to  acknowledge 
breach  of  a  promise  of  marriage,  and  to  agree  to  pay  damages 
therefor.  Held,  a  false  imprisonment:  Ilildebrand  v.  McCrum, 
101  Ind.  61.  A  went  to  B's  house,  and  found  B  in  his  corn- 
crib.  A  produced  a  revolver  and  demanded  that  B  answer 
certain  questions.  Upon  B  attempting  to  leave  tho  crib,  A  firod 
at  and  wounded  him,  compelling  him  to  remain  in  the  crib  for 
an  hour,  when  B  procured  a  pistol,  and  A  went  away.  Held, 
that  an  action  for  false  imprisonment  would  lie:  McNay  v. 
Stmtton,  9  III.  App.  215.  A  sued  B  and  caused  his  arrest.  B 
tendered  bail,  which  A  knew  to  be  sufficient,  but  which  he 


1S29      FiU.SE  ATvREST  AND   IMPRISONMENT.      §§  1005,  lOOG 


onli^rod  thf  oflicor  to  rofuso.  TIcUJ,  that  A  wns  liable  to  li  in 
trcnpass  on  tho  case,  and  this  whether  ho  acted  maliciously  (ir 
not:  GihhH  V.  Jiavdlrtt,  58  N.  H.  407.  A  wns  arrested  and 
tlnvatened  with  iniprisonuicnt,  upon  n  writ  in  a  civil  action, 
void  for  irri>gularity  and  tho  want  of  a  proi)er  allidavit,  and  was 
(•(tiiipellod  to  promise,  and  procure  friends  to  vouch  for  him, 
that  ho  would  not  abscond,  and  was  subjected  to  expense  in 
nrocurin^?  an  order  setting  aside  the  writ  six  days  after  its 
issue.  Held,  that  he  could  recover  for  this  interference  with 
his  person  and  restraint  of  his  liberty,  although  he  was  not 
actually  imprisoned,  and  did  not  r^i-  >  the  bond  required  by  tho 
writ,  and  there  was  no  proof  oT  .j.vpross  malice:  Boncdccl  v. 
Voncdecl,  28  Wis.  245;  30  Wis.  511. 

§  1065.    Restraint  without  Process — When  Permitted. 

—  In  certain  relations,  a  degree  of  restraint  may  bo  le- 
i^'ully  exercised  by  one  person  over  another;  as,  for  exam- 
ple, a  parent  over  his  child,  a  guardian  over  his  ward,  a 
master  over  his  apprentice,  a  teacher  over  his  pupil,  and 
tlio  master  of  a  ship  over  those  under  his  charge,  both 
(icw  and  passengers.*  Another  case  is  that  of  bail  and 
principal.  The  authority  of  the  ball  in  respect  to  his 
principal,  for  whose  conduct  ho  has  become  responsible, 
is  to  arrest  and  surrender  him  in  exoneration  of  his  lia- 
bility. It  is  a  limited  authority,  and  must  bo  exercised 
without  needless  violence  or  annoyance.''  But  tho  bail 
may  break  open  tho  doors  of  tho  principal's  house,  if  ho 
reluses  to  surrender  after  notice.^ 

§  1066.  Imprisonment  of  Insane  Persons. — An  insane 
porrion  may  be  arrested  and  detained  without  legal  pro- 
cess when  it  is  necessary  to  restrain  him;'*  but  where  tho 
person  is  not  dangerous,  the  necessity  does  not  exist,  and 
tho  right  therefore  does  not  exist.^     If  there  is  probable 


'  Seo  Division  I.,  Persons. 

-  Ciioley  on  Torts,  172;  Road  r.Case, 
4  Conn.  166;  10  Am.  Doc.  Ill;  Pease 
v.  Burt,  3  Day,  485. 

^  Read  V.  Case,  4  Conn.  166;  10  Am. 
Doc.  110. 


*  Keleher  v.  Putnam,  60  N.  H.  30; 
49  Am.  Rep.  .304,  the  court  saying: 
"  The  right  of  personal  liberty  is  muG- 
ject  to  some  exceptions  necessary  to 
the  common  welfare  of  society.  At 
common  law,  a  private  citizen,  without 


*  Keleher  ?\  Putnam,  60  N.  H.  30;    warrant,  may  lawfully  seize  and  de- 
49  Am.  Rep.  304.  tain  another  iu  certain  cases.    It  ia 


§10G7 


FALSE   ARREST   AND   IMPRISONMENT. 


1830 


cause  to  believe  that  a  person  is  insane,  and  is  about  to 
commit  any  mischief,  which,  if  committed  by  a  sane  per- 
son, would  constitute  a  criminal  offense,  an  officer  may 
detain  the  offender  until  it  may  reasonably  be  presumed 
that  he  has  changed  his  purpose.' 

§  1067.     Restraint    with    Process  —  In  General.— An 

arrest  made  upon  a  sufficient  warrant  issued  by  a  judge 
or  court  having  jurisdiction  is  a  protection  to  all  parties 
acting  under  it."  To  an  action  for  false  imprisonment  it 
is  a  good  defense  that  the  process  was  valid  and  issued 
by  a  court  of  competent  jurisdiction.  One  cannot  recover 
for  false  imprisonment  on  proof  of  a  case  of  malicious 
prosecution.'  An  imprisonment,  though  caused  by  a  ran- 
licious  prosecution,  is  not  "false,"  unless  extrajudicial  or 
■without  legal  process.'*  Congress  has  no  right  to  im- 
pri-  1  a  person  for  refusing  to  answer  a  quest' jn  a  com- 
aiiiUee  had  no  light  to  inquire  into,  and  the  sergeant-ut- 


;  justifiable  to  hold  a  man  to  restrain 
,him  from  mischief.      It  is  lawful  to 
;  interfere  in  an  affray  whicli  endangers 
Mhe  lives  of   the   combatants.     Other 
r  instances  are  enumerated  in  Colby  v. 
Jackson,    12  N.  H.  r)26.     Under  the 
right  of  self-defense,  it  is  lawful  to 
(•seize  and  restrain  any  person  incapable 
of  controlling  his  own  actions,  wliose 
'  being  at  large  endangers  the  safety  of 
others;    but    this   is   justifiable    only 
when  the  urgency  of  the  case  demands 
f  immediate    intervention.     The    right 
i'to  exercise  this  summary  remedy  has 
:  its  foundation  in  a  reasonable  neces- 
'  sity,  and  ceases  with  the  necessity.    A 
'dangerous  maniac  may  I)e  restrained 
■temi)orarily  until  he  can  be  safely  re- 
'  leased,  or  can  be  arrested  upon  legal 
process,  or  committed  to  the  asylum 
under  legal  authority.     But  not  every 
insane  person  is  dangerous.     Nothing 
can  be  more  harmless  than  some  of 
the  milder  forms  of  insanity.     Nor  is 
it  any  justification  that  the  defend- 
ants were    actuated    l)y  a  desire   to 
promote  the  plaintiff's  welfare.     The 
right  of   personal  liberty  is  deemed. 


too  sacred  to  be  left  to  the  determi- 
nation of  an  irresponsible  individual, 
however  conscientious.  The  law  givus 
these  unfortunate  persons  the  safe- 
guards of  legal  proceedings  and  the 
care  of  responsible  guardians:  Davis 
V.  Merrill,  47  N.  H.  208;  22  Montlily 
L.  Rep.  385;  G  South.  L.  Rev.,  N. 
S.,  5G8;  3  Am.  Law  Rev.  193;  Ray  on 
Insanity,  sees.  CI4-G1!).  Tlie  legisla- 
ture has  established  appropriate  forms 
of  proceeding  for  ascertaining  their 
mental  condition,  imposing  ui^ou  them, 
under  the  supervision  of  public  fuue- 
tionaries,  the  restraint  necessary  to 
protect  them  from  the  imposition  ut 
others,  and  subjecting  them  to  such 
treatment  as  may  restore  their  rea- 
son. 

»  Pietz  V.  Dain,  1  Wils.  (Ind.)  150. 

2  Johnson  r.  Maxon,  23  Mich.  lu'O; 
Waldheim  v.  Sichel,  1  Hilt.  45;  Kroli.i 
V.  Thomas,  12  111.  App.  20G;  .Mc- 
Carthy V.  De  Armit,  99  Pa.  St.  ();!; 
Coupal  r.  Ward,  106  Mass.  289. 

*  Herzog  v.  Graham,  9  Lea,    152. 

*  Murphy  v.  MartiOj  58  VVia.  270. 


1831       FALSE   ARREST   AND    IMPRISONMENT.      §§  IOCS,  10G9 


arms  is  liable  for  the  trespass/  A  railroad  coiuiiauy  has 
110  right  to  detain  a  person  who  has  lost  his  ticket  and 
wiU  not  pay  fare.^  A  United  States  commissioner  cannot 
fine  and  imprison  a  party .^  A  commissioner  in  chancery 
cannot  commit  a  person  for  refusing  to  testify .■•  The 
arrest  of  a  person  privileged  from  arrest  is  not  a  trespass,^ 
and  does  not  give  an  action  for  false  imprisonment,"  even 
though  the  officer  knew  of  the  exemption.'  It  is  a 
personal  privilege  which  may  be  waived  by  the  party  ar- 
rested by  not  asserting  it  at  the  first  opportunity.^ 

§1068.  In  Civil  Cases.  —  Imprisonment  for  debt  is 
now  practically  obsolete  in  the  United  States,  but  the  arrest 
of  {1  '~'vrty  in  a  civil  action  is  still  permitted  in  civil  cases 
in  mobt  of  the  states.  The  grounds  upon  which  the  arrest 
is  allowed  are  generally  the  same,  and  are  limited  to  cases 
where  the  debt  was  contracted  or  its  payment  is  sought 
to  bo  evaded  by  the  fraud  of  the  debtor.  As,  for  example, 
where  money  held  in  a  fiduciary  or  official  capacity  is 
converted;  where  a  credit  has  been  obtained  and  a  debt 
made  by  fraud;  where  the  debtor  is  about  to  remove  from 
the  state  himself,  or  his  property,  or  is  concealing  his 
property  to  escape  payment  of  the  debt.'' 

§  1069.  Arresting  Wrong  Person.  —  Where  an  officer 
has  a  warrant  for  one  man  and  arrests  another,  he  cannot 
justify  under  the  writ  for  the  first,'"  even  although  the 


*  Kilhoun  v.  Thompson,  2  Morr. 
TraiiH.  50. 

-  Lyiicli  y.  R.  R.  Co.,  90  N.  Y.  77; 
4;}  A  II.  Rep.  141. 

M'andorpool  w.  State,  34  Ark.  174. 
An  attachiiiciit  against  the  person  for 
contcnipt,  issueil  by  the  register  of  the 
court  on  afhilavit,  but  without  any 
crdur  from  the  court,  is  invalid,  and 
is  no  justilication  in  an  action  for  false 
inipririomaoiit:  Thompson  v.  Ells- 
woi'tli,  :!i)  Mich.  710. 

*  Marsh  d.  Williams,  1  How.  (Miss.) 
13'-'. 

'■'  Chase  v.  Fish,   16  Me.  130;  Wood 


V.  Kinsman,  5  Vt.  5S8 ;  Cameron  v. 
Lightfoot,  2W.  Black.  1190;  Brown  v. 
Getchell,  11  Mass.  11;  Cable  r.  (.'ooper, 
15  Johns.  15"2;  Deo  v.  Van  Valken- 
burgh,  5  Hill,  242;  Blight  i\  Fisher, 
Pot.  C.  C.  41;  Waterman  r.  Mursitt,  7 
R.  I.  345. 

"Smith  V.  Jones,  70  Me.  138;  49 
Am.  Rep.  598. 

"  Magnay  v.  Burt,  5  Q.  B.  381. 

8  Dow  V.  Smith,  7  Vt.  405;  29  Am. 
Dec.  202. 

9  See  Cal.  Civ.  Code,  sec.  479. 

'0  Mead  v.  Haws,  7  Cow.  3;i2i  Miller 
V.  Foley,  28  Barb.  030;  Scott  v.  Ely, 


§  1070 


FALSE    ARREST    AND   IMPRISONMENT. 


1832 


first  was  the  one  against  whom  the  warrant  was  intended 
to  bo  issued.'  But  the  arrest  is  valid  if  the  party  led  the 
officer  b\''  his  statements  to  believe  himself  the  one  de- 
scribed in  the  writ.^  An  officer  arresting  a  supposed  felon 
without  a  warrant,  but  arresting  the  wrong  man,  is  not 
liable  if  he  acted  in  good  faith  and  upon  reasonable 
grounds  of  suspicion.^ 

Illustrations.  —  A  was  arrested  through  the  agency  of  a 
detective  agency  employed  by  a  railroad  company  without  a 
warrant  and  under  a  mistake,  he  not  being  the  person  sought. 
Held,  that  A  had  a  right  of  action  against  the  company:  Harris 
V.  R.  R.  Co.,  35  Fed.  Rep.  116.  A  sheriflf  was  requested  by  the 
authorities  of  another  county  to  arrest  a  certain  person  there 
indicted  for  murder.  The  sheriff,  without  a  warrant,  went  into 
another  county  than  his  own,  and  arrested  the  wrong  person. 
Held,  that  an  action  for  false  imprisonment  would  lie  against 
the  sheriff:  Mitchell  v.  Malonc,  77  Ga.  301.  Charles  F.  Moore 
was  arrested  on  a  capias  from  another  county  for  the  arrest  of 
Charley  Moore,  for  theft.  Plaintiff  testified  that  he  protested 
his  innocence,  and  warned  the  sheriff  that  he  should  seek 
redress.  When  taken  to  the  other  county,  he  was  not  identified 
as  the  person  desired.  Held,  to  sustain  a  judgment  for  false 
imprisonment:  Ryburn  v.  Moore,  Tex.,  1889. 

§  1070.  Restraint  with  Process  — Void  Process. — Pro- 
cess void  because  not  emanating  from  the  officer  or  court 
from  which  it  purports  to  come  is  of  no  protection.^  Nor 
is  process  which  is  void  because  the  court  has  no  juris- 
diction to  issue  it;  as  where  a  justice  issues  a  warrant  of 


4  Wend.  555;  Griswold  v.  Sedgwick, 
1  Weiid.  126;  McMahan  v.  Green,  U 
Vt.  70;  80  Am.  Dec.  6G5;  Shadgett  v. 
Clipson,  8  East,  328;  Dunston  v.  Pat- 
erson,  2  Com.  B.,  N.  S,  495;  Hoye  v. 
Bnsh,  1  Man.  &  G.  784;  Hays  v. 
Creary,  GO  Tex.  445;  Formwalt  v. 
Hylton,  C(5  Tex.  288. 

'  Hoye  r.  Bush,  1  Man.  &  G.  784. 

'■'  Dunston  v.  Pateraon,  2  Com.  B., 
N.  S.,  495. 

"Eanes  v.  State,  G  Humph.  53;  44 
Am.  Doc.  289;  Formwalt  v.  Hylton, 
6G  Tex.  288. 

*Cooley  on  Torts,  173;  Pierce  v. 
Hubbard,  10  Johns.  405;  Rafiferty  v. 


People,  C9  111.  Ill;  72  111.  37;  18  Am. 
Rep.   GOl;  Haskiua  ?•.  Young,  2  Dcv. 

6  B.  527;  31  Am.  Dec.  420;  Piiintor  ?;. 
Ives,  4  Neb.  122;  Hallock  v.  Dominy, 

7  Hun,  52.  A  warrant  void  on  its 
face  is  no  defense  to  one  on  whose 
complaint  the  warrant  was  issued: 
Gclzenleuchter  v.  Niemeycr,  G4  AVis. 
.31G;  54  Am.  Rep.  GIG.  One  who 
is  arrested  without  reason,  and  kept 
in  defiance  of  offers  to  give  bail  and  to 
sue  out  a  writ  of  hahean  corpus,  may 
maintain  against  all  concerned  an  ac- 
tion for  false  imprisonment:  Manning 
V.  Mitchell,  73  Ga.  6G0. 


r 


1833 


FKLSE   ARKEST   AND    IMPRISONMENT. 


§  1070 


arrest  without  the  oath  required  by  statute/  or  without  a 
complaint/  or  an  execution  renewing  an  execution  with- 
out signing  it/  or  a  warrant  not  describing  the  person/ 
Process  void  because  the  officer  issuing  it  had  no  juris- 
diction is  no  protection,  and  all  the  parties  who  have 
procured  or  acted  upon  it  are  liable  for  a  false  imprison- 
ment/ r>ut  where  the  jurisdiction  depends  not  on  matter 
of  laW;  but  on  matter  of  fact  whicli  the  court  or  magis- 
trate is  to  pass  upon,  the  decision  upon  it  is  conclusive, 
and  a  protection,  not  only  to  the  officer  serving  the  pro- 
cess, but  to  the  court  or  magistrate  also/  Where  the  suffi- 
ciency of  the  facts  stated  in  an  application  for  an  order 
of  arrest  is  passed  upon  by  the  judge  making  the  order, 
the  plaintiff  is  not  responsible,  unless  he  omitted  some- 
thing that  he  should  have  averred/  An  action  for  false 
imprisonment  cannot  be  maintained  against  a  town,  its 
mtyor,  marshal,  or  deputy  marshal,  by  one  who  has  been 
arrested  for  a  violation  of  a  town  ordinance,  though  the 
town  council  had  no  power  to  pass  the  ordinance/  If  a 
prisoner  be  brought  on  habeas  corpus  issued  b}'  a  judge 
who  has  not  jurisdiction  in  such  case,  and  remanded,  this 
is  not  a  false  imprisonment.  The  proceedings  on  habeas 
corpuH  being  void,  the  imprisonineut  may  be  referred  to 
the  original  warrant/ 

Illustrations.  —  Blank  warrants  signed  by  a  magistrate 
were  left  in  the  hands  of  a  police-sergeant  who  was  accustomed 
to  fill  them  up  with  the  name  of  the  person  to  be  arrested,  etc., 
and  use  them  as  occasion  demanded.  Upon  a  warrant  so  filled 
up  hy  the  sergeant,  a  policcofficer  undertook  to  arrest  the  per- 
son whose   name  was  inserted  therein,  but  was  resisted  and 


'  Bi^sell  V.  Gold,  1  Wend.  210;  19 
Am.  Doc.  480. 

•^  Wilcox  V.Williamson,  61  Miss.  310. 

^Bailiyilt  V.  Valk,  12  Weml.  145; 
27  Am.  Dec.  124. 

*  .Idiios  r.  Leonard,  50  Iowa,  100;  32 
Am.  Ivop.  116. 

^  Toiilk  *•.  Slocum,  3  Blackf.  421. 

*  Bnttaiiir'.  Kinnaird,  1  Brod.  &  B. 
432;  Mathftr  v.  Hood,   8  Johns.   44; 


Mackaboy  v.  Commonwealth,  2  Va. 
Caa.  208;  Clarke  r.  May,  2  dray,  410; 
01  Am.  Dec.  470;  8t;ito  v.  Scott,  1 
Baihiy,  294;  Wall  r.  Triiml)ull,  16 
Mich.  228;  Sheklon  r.  Wriyht,  r>  N. 
Y.  497. 

'  Dusy  V.  Helm,  59  Cal.  188. 

^  Trammell  r.  Russellvillo,  34  Ark. 
105;  30  Am.  Rep.  1. 

*  State  V.  Guest,  6  Ala.  778. 


§  1071 


FALSE   ARREST  AND   IMPRISONMENT.' 


1834 


killed  by  such  person.  Held,  that  the  warrant  was  a  nullity, 
and  such  killing  was  manslaughter,  and  not  murder:  Rnfferty 
V.  People,  G9  111.  Ill;  18  Am.  Rep.  601.  A  was  imprisoned  for 
violating  an  injunction  granted  by  the  probate  court  without 
the  undertaking  required  by  law.  Held,  that  the  judgment 
was  invalid,  and  that,  in  an  action  for  false  imprisonment,  ma- 
lice and  want  of  probable  cause  need  not  be  alleged:  Diehl  v. 
Friester,  37  Ohio  St.  473«  A  police-court  justice  ordered  a  man 
complained  of  for  evading  payment  of  fare  on  a  railroad  to  find 
bail  for  his  appearance  before  the  supreme  judicial  court.  Fail- 
ing to  find  bail,  he  was  committed,  and  obtained  his  release  on 
habeas  corpus.  Held,  that  the  marshal  and  chief  of  police  wlio 
directed  by  a  subordinate  the  execution  of  the  mittimus  could 
not,  when  sued  for  false  imprisonment,  justify  under  a  process 
BO  clearly  on  its  face  in  excess  of  jurisdiction:  Pooler  v.  Reed, 
75  Me.  488.  Plaintiflf  sued  a  mayor  for  false  imprisonment  in 
having  carsed  plaintiff's  arrest  without  an  affidavit.  Held, 
that  if  plaintiff  waived  the  affidavit,  this  constituted  a  sufficient 
defense:   Williamson  v.  Wilcox,  63  Miss.  335. 


§  1071.  Defective  Process. — Where  the  process  is  not 
void,  but  merely  irregular,  it  is  a  protection  to  those  act- 
ing under  it.'  An  oflScer  who  arrests  and  imprisons  one 
by  virtue  of  a  warrant  is  justified,  although  every  fact 
necessary  to  constitute  the  oflense  is  not  set  forth .'^  Where 
the  governor  of  one  state  demands  a  person  of  the  gover- 
nor of  another  state  as  a  fugitive  from  justice,  and  the 
governor  of  the  latter  state  causes  the  accused  to  bo 
arrested  and  delivered  to  the  person  appointed  for  that 
purpose  by  the  governor  making  the  demand,  such  per- 
son is  not  liable  for  a  false  imprisonment  by  reason  of 
any  irregularity  in  the  warrant  of  arrest.^  If  the  warrant 
was  issued  on  testimony  showing  the  obtaining  of  goods 
by  a  lie,  and  under  the  pretense  of  a  contract,  the  action 
for  false  imprisonment  is  not  maintainable,  even  though 
technically  there  could  not  be  a  conviction  for  false  pro- 

iReynoMs  v.  Corp,  3  Caines,  267;  v.  Cochran,  32  Hun,  521;    Marks  v. 

Johnson  v.  Maxon,  23  Mich.  127;  Coo-  Townaend.  97    N.   Y.  590;   Wagstatf 

per  r.  Adams,  2  Blackf.  294;  Chapman  v.  Schippel,  27  Kan.  450. 

V.  Dyett,  11  Wend.  31;   25  Am.  Dec.  ^  Collins  v.  Brackett,  34  Minn.  .339. 

399;  Dominick  t\  Backer,  3  Barb.  19;  ^  Jobuston  v.  Vaaamriuge,  5  Blackf. 

Roth  V.  Schloss,  G  Barb.  308;  Bocock  311. 


1835 


FALSE   ARREST   AND   IMPRISONMENT.  §  1072 


tenses  or  embezzlement.^  An  action  for  false  imprison- 
ment will  not  lie  against  one  who  has  made  a  criminal 
complaint,  or  against  his  attorney,  in  a  case  where  the 
warrant  issued  thereon  is  sufficiently  regular  on  its  face 
to  protect  the  officer  executing  it.''  But  the  officer  is 
bound  to  know  the  law,  and  that  his  writ  is  bad  on  its 
face,  if  such  is  the  fact.^  If  a  person  arrested  without  a 
warrant  consents  to  his  discharge  without  a  complaint 
being  made  against  him,  intending  thereby  to  release  any 
damages  on  account  of  a  failure  to  make  the  complaint, 
and  such  agreement  is  fairly  and  intelligently  made,  he 
cannot  maintain  an  action  against  the  officer  for  an  as- 
sault and  false  imprisonment.* 

§  1072.  Arrest  by  Military  Orders.  —  The  acts  of 
military  authorities  in  time  of  war  in  arresting  and  im- 
prisoning persons  do  not,  as  a  rule,  give  any  right  of  action 
in  the  civil  courts.^  But  for  a  malicious  act  in  time  of 
peace,  even  of  lawful  authority,  or  in  excess  of  authority, 
a  military  officer  may  be  made  liable." 

Illustrations. — A  sergeant  in  garrison  and  on  duty,  ad- 
joining an  incorporated  city,  arrested  a  citizen  of  Texas  with 
his  military  guard,  while  he  was  outside  the  garrison-grounds, 
standing  in  a  street  of  the  city,  and  with  fixed  bayonets 
escorted  him  to  the  garrison  for  using  insulting  words  to  the 
sergeant.  Held,  that  the  sergeant,  being  charged  by  the  laws  of 
the  United  States  with  the  good  order  and  discipline  of  the  fort, 
was  justifiec  in  going  out  of  the  fort  to  remove  the  citizen  and 
abate  the  nuisance  caused  by  his  abusive  language:  Oglesby  v. 
State,  39  Tex.  53. 


'  Neall  V.  Hart,  115  Pa.  St.  347. 

'^  Wheatoa  v.  Beecher,  49  Mich. 
348;  Fischer  v.  Laugbein,  13  Abb. 
K  0.  10. 

^  Grumon  i\  Raymond,  1  Conn.  39; 
G  Am.  Dec.  200;  Lewis  v.  Avery,  8 
Vt.  287;  30  Am.  Dec.  469;  Clayton  v. 
Scott,  45  Vt.  386;  Barhyclt  v.  Valk, 
12  Wend.  145;  27  Am.  Dec.  124. 

^  Gaffrey  v.  Drugan,  144  Mass. 
294. 

■'  Teagarden  v.  Graham,  31  Ind. 
422;    Oglesby  v.  State,   39    Tex.  53; 


Clow  V.  Wright,  Brayt.  1 18.  And  see 
Merriam  v.  Bryant,  14  Conn.  200. 
As  to  acts  of  the  military  authorities 
of  the  Confederate  States,  see  French 
V.  White,  4  W.  Va.  170;  Caperton  v. 
Martin,  4  W.  Va.  138;  G  Am.  I'.ep. 
270;  Caperou  v.  Nickel,  4  W.  Va.  173; 
Caperon  v.  Bowyer,  4  V\ .  Va.  176; 
Caperon  v.  Ballard,  4  W.  Va.  420. 

« Tyler  v.  Pomeroy,  8  Allen,  480; 
McCall  V.  McDowell,  1  Abb.  212; 
Wilson  V.  McKeuzie,  7  Hill,  95;  43 
Am.  Dec.  51. 


§  1073 


FALSE   ARREST   AND    IMPRISONMENT. 


1836 


§1073.     Arrest  without    Warrant  — By  Officer. —  A 

coustuble  or  other  peace-officer  has  power  to  arrest  with- 
out a  warrant  where  he  sees  a  felony  committed,  or  he  has 
reasonable  {jjrounds  to  believe  a  felony  has  been  commit- 
ted/ lie  is  not  bound  to  first  procure  a  warrant,  even 
where  there  is  no  reason  to  fear  the  escape  of  the  prisoner 
in  conso(|uence  of  the  delay."  lie  may  arrest  without  a 
warrant,  upon  satisfactory  reasons  for  belief  that  a  crime 
has  been  committed,  that  the  suspected  party  is  guilty, 
and  that  he  would  escape  by  the  delay  in  obtaining  a  war- 
rant.'* lie  may  arrest  without  warrant  in  cases  in  his 
view  of  breaches  of  the  peace,  affrays,  riots,'*  or  drunken 
and  disorderly  i)ersons,  vagrants,  and  street-walkers.^  A 
policeman  may,  without  a  warrant,  arrest  one  for  injur- 
ing sheep  in  a  railroad  cattle-yard,  and  such  arrest  may 
be  made  on  Sunday."  He  may  arrest  to  prevent  a  threat- 
ened breach  of  the  peace.'  But  arrests  without  process 
to  prevent  threatened  breaches  of  the  peace  are  not  justi- 
fied uulcds  the  breach  has  proceeded  far  enough  to  sustain 
proceedings  against  the  person  committing  it,  without 
reference  to  past  similar  offenses  which  he  may  have  com- 
mitted before  the  officer  arrived.^  A  statute  providing 
that  "  any  officer,  upon  view  of  any  crime,"  etc.,  may  ar- 
rest without  warrant  imports  his  right  to  arrest  upon 
view  of  such  acts  as  show  a  reasonable  ground  of  arrest; 
also   the    right  to  take  from   the  offender  any  tools  or 

Harr.  (Del.)  505;  Phillips  v.  Trull,  11 
Jolm.s.  487;  Vaudcvoer  r.  Mattocks,  3 
lad.  479;  Boylcstoii  ?•.  Kerr,  2  Dalv, 
2'JO;  Steruaek  v.  Brookt),  7  Daly,  142; 
State  V.  Crocker,  1  Houst.  C'riui.  Cas. 
434;  State  v.  Bacon,  17  S.  (.'.  58; 
Wiltse  V.  Holt,  95  lial.  4li9. 

•■'  (.'ommonweal  ,li  v.  Tohin,  108  Alans. 
42G;  11  Am.  Rep,  375;  Mills  r.  Wos- 
ton,  CO  111.  362;  Roberts  r.  State,  14 
Mo.  138;  55  Am.  Dee.  97;  but  sec  lu 
ro  Way,  41  Mich.  290. 

"  Corbett  v.  Sullivan,  54  Vt.  G19. 

'  Hayea  v.  Mitchell,  80  Ala.  183. 

^  Quinn  v.  Heiael,  40  Mich.  57G. 


*  Cooley  on  Torts,  175;  Samuel  v. 
Payne,  1  Doug.  (Mich.)  358;  Davis  r. 
Russell,  5]jing.  354;  Beckwith  v.  Pliil- 
by,  6  Barn.  &  C.  035;  Holley  v.  Mix,  3 
Wend.  3.ji);  20  Am.  Dec.  702;  Rohan 
V.  Swain,  5  C'usli.  281;  Doeriug  v. 
State,  49  Ind.  50;  19  Am.  Rep.  009; 
Shanley  v.  Wells,  71  111.  78;  State  v. 
Sims,  10  S.  C.  480;  State  v.  Under- 
wood, 75  Mo.  230. 

-  Wade  /•.  Cliaifee,  8  R.  I.  224;  5 
Am.  Rep.  572. 

»  Neal  c.  .Joyner,  89  N.  C.  287. 

*  Respublica  v.  Montgomery,  1 
Yeates,  419;  City  Council  v.  Payne,  2 
Nott  &  McC.  475;  State  v.  Brown,  5 


1837 


FALSE    ARREST    AND    IMPRISONMENT. 


1073 


mil,  11 
tidcks,  3 
2  Dalv, 
.ly,  1-12; 
riui.  Cas. 
(,'.    58; 


weapons  available  for  escape,  or  means  to  procure  the 
same,  and  hold  them  till  they  can  safely  be  returned.^ 

But  an  officer  has  no  power  to  arrest  a  person  without 
a  warrant  on  suspicion  of  having  committed  a  misde- 
meanor,^ or  an  offense,  like  petty  larceny,  punishable  by 
fine  and  imprisonment  in  jail.''  It  is  essential  that  within 
a  reasonable  time  the  party  arrested  be  taken  before  a 
magistrate  for  examination.'*  In  an  action  for  false  arrest 
and  imprisonment  of  the  plaintiff  on  an  alleged  suspicion 
of  his  being  an  escaped  convict,  it  is  for  the  jury  to  de- 
termine whether  the  detention  was  for  an  unreasonable 
tiine.^  Although  no  express  authority  is  conferred  by 
statute,  one  arrested  under  a  peace-warrant  and  brought 
before  a  justice  late  Saturday  night,  crazed  with  drink,  is 
properly  committed  over  Sunday  in  default  of  bail."  An 
arrest  by  a  constable  out  of  his  jurisdiction  is  an  arrest 
without  a  warrant,  even  though  he  may  have  a  warrant 
which  commanded  the  arrest  within  his  jurisdiction.''  In 
a  Michigan  case,  a  city  marshal  arrested  a  man  on  Satur- 
day evening  on  the  strength  of  a  letter  purporting  to  come 
from  the  chief  of  police  of  a  city  in  another  state,  and 
signed  with  his  name  by  some  person  whose  initials  only 
were  attached.  The  letter  stated  nothing  that  would 
constiti^te  a  criminal  offense  in  Michigan,  but  the  mar- 
shal detained  the  prisoner  as  a  matter  of  "  official  cour- 
tesy." The  supreme  court  held  that  the  arrest  was  illegal, 
and  the  officer  liable  for  false  imprisonment.® 


G19. 
183. 
57G. 


1  O'Connor  v.  Bucklin,  59  N.  H. 
589. 

^  GriflBn  v.  Coleman,  4  Hurl.  &  N. 
265;  Bowditch  v.  Balchin,  5  Ex.  380; 
Nuwtou  V.  Locklin,  77  111.  103;  Boyle- 
ston  /'.  Kerr,  2  Daly,  220;  State  i\ 
Crocker,  1  Houst.  Cr.  Cas.  434;  People 
r.  Pnitt,  22  Hun,  300;  Philadelphia 
r.  Campbell,  11  Phila.  163;  People  v. 
Haley,  48  Mich.  495. 

^  Bright  V.  Patton,  5  Mackey,  534; 
CO  A\».  Kep.  3G9. 

*  Harris  v.  Atlanta,  62  Ga.  291 ;  Coch- 
ran V.  Toher,  14  Miuu.  388;  Brock  v. 


Stimson,  108  Mass.  520;  II  Am.  Rep. 
309;  Jolinson  v.  Americus,  46  Ga.  SO; 
Hayes  I'.  Mitchell,  67  Ala.  452;  Touhey 
V.  King,  9  Lea,  422. 

^  Harris  r.  Atlanta,  62  Ga.  290. 

*  Pepper  v.  Mayes,  81  Ky.  674. 

'  Krug  V.  Ward,  77  111.  603;  Led- 
better  v.  State,  23  Tex.  App.  247. 

''  Malcolmaon  v.  Scott,  56  Mich.  459. 
The  court  said:  "  The  habit,  which  is 
by  a  very  singular  abuse  of  language 
called  official  courtesy,  of  making 
illegal  arrests  in  one  jurisdiction  in 
the  hope  that  similar  violatious  of  law 


§  1073 


FALSE    ARREST   AND   IMPRISONMENT. 


1838 


iLLUSTUATiONa.  —  The  plaintiff,  in  a  frequented  public  street, 
called  defendant,  a  police-oflicer,  in  a  loud  and  boisterous  man- 
ner, offensive  and  indecent  names,  whereupon  the  defendant 
arrested  plaintiff.  In  an  action  for  assault  and  battery  and 
false  imprisonment,  heldy  that  the  plaintiff  was  guilty  of  a  breach 
of  the  peace,  and  that  an  arrest  without  warrant  was  lawful: 
Davis  V.  Burgess,  54  Mich.  514;  52  Am.  Rep.  828.  The  plaintiff 
fraudulently  substituted  a  check  given  at  a  restaurant  for  a  meal 
for  one  of  a  smaller  amount,  and  paid  the  smaller  amount.  He 
was  subsequently  complained  of  to  a  constable,  who  arrested 
him  without  a  warrant.  Held,  that  the  constable  was  not  justi- 
fied: Boyleston  v.  Kerr,  2  Daly,  220.  A  peacc-oflicer,  without  a 
warrant,  arrested  plaintiff  five  hours  after  he  had  been  guilty  of 
disorderly  conduct.  Held,  that  an  action  for  false  imprisonment 
would  lie:  Wahl  v.  Walton,  30  Minn.  506.  A  member  of  a  city 
government  contracted  with  the  city  to  renew  a  bridge,  but 
after  collecting  the  materials  at  the  place  he  was  notified  by 
the  city  autliorities,  contending  they  were  unsuitable,  not  to 
remove  the  old  bridge  or  proceed  with  the  work.  Not  desist- 
ing, he  was  arrested  by  the  city  marshal,  committed  to  jail 
until  a  warrant  could  be  procured,  and  taken  before  the  muni- 
cipal court  on  a  charge  of  obstructing  the  highway.  Held,  that 
the  contract  not  having  been  declared  void  by  the  authorities, 
the  arrest  and  imprisonment  were  unjustifiable:  Moore  v. 
Durgin,  68  Me.  148.  An  officer  arrested  a  woman  and  took 
her  to  the  station  on  no  other  justification  than  that  of  vague 
hearsay  and  suspicion  of  a  third  person  that  she  had  had  some- 
thing to  do  with  making  way  with  a  missing  person,  the  officer 
himself  making  no  inquiry  whatever  into  the  facts.  Held,  that 
the  arrest  was  unwarranted:  Somerville  v.  Richards,  37  ]\Iich.  299. 
Plaintift'  being  drunk  and  disorderly  in  a  public  place,  defend- 
ant, a  police-ofiicer,  arrested  him  without  a  warrant,  as  directed 


may  be  reciprocated,  is  one  which  can- 
not be  tolerated.  The  law  places  pri- 
vate liberty  at  a  much  liif^her  value 
than  official  favors;  and  violations  of 
law  by  those  who  are  appointed  to 
protect,  instead  of  destroy,  private 
security  deserve  no  favor.  Funda- 
mental rules  of  constitutional  immu- 
nity  cannot  be   relaxed The 

extradition  of  criminals  who  are 
claimed  to  be  fugitives  from  other 
states  is  governed  entirely  by  the 
constitution  and  laws  of  the  United 
States.  No  state  can  deal  with  other 
states,  under  the  express  terms  of  the 
constitution,  without  the  approval  of 
Congress,  ami  what  the  state  cannot 
do  its  policemen  cauaot  do.    An  ai'rest 


here  without  compliance  with  the 
United  States  laws  cannot  be  main- 
tained. Michigan  cannot  treat  for- 
eign offenses  as  domestic,  and  there 
is  nothing  in  our  statutes  which  con- 
templates an  arrest  witliout  warrant 
for  purposes  of  extradition.  Under 
the  constitution  and  acts  of  Congress, 
it  is  for  the  governor  of  the  one  state 
to  determine  whetlier  he  desires  extra- 
dition, and  tor  the  governor  of  the 
other  to  decide  whetlHsr  ho  will  grant 
it.  Congress  will  not  allow  the  de- 
mand to  be  made  until  the  otfender 
has  either  been  indicted,  or  otherwise 
complained  of  in  the  regular  course  of 
justice.  There  can  bo  no  demand 
before  complaint." 


1S39 


FALSE   ARREST   AND   IMPRISONMENT.  §  1074 


street 


by  a  statute  for  puch  case  provided,  and  which  also  directed 
that  the  offender  be  taken  h<;tbre  a  magistrate.  DefiMidaiit  kept 
plainlitt"  in  custody  for  an  hour,  and  discharged  him  without 
taking  him  before  a  magistrate.  Held,  that  the  defendant  was 
liable  for  an  assault  and  false  imprisonment:  Brock  v.  Stlmson, 
108  Mass.  520;  11  Am.  Rep.  390.  One  was  arrested  at  5:30, 
r.  M.,  by  a  police-ofFicer,  for  riding  his  horse  on  the  sichnvalk  of 
u  street  in  the  city  of  Brooklyn,  in  presence  of  the  oflicer.  Ho 
was  carried  to  the  station-house,  and  there  by  the  captain  and 
sergeant  confined  in  a  cell  until  morning.  Ildd,  that  this  was 
only  a  misdemeanor;  that  the  duty  of  the  policeman  was  to 
have  carried  the  arrested  man  before  a  magistrate  immediately; 
that  the  detention  was  unlawful,  and  would  sustain  a  suit  for 
daiDiiges  by  the  party  arrested  against  the  olljcers:  Srhnelder 
V.  McLane,  33  Barb.  495.  The  plaintiff  was  arrested  without  a 
warrant,  was  detained  five  days  without  having  ever  been  taken 
before  a  magistrate,  although  there  was  nothing  to  prevent 
this  being  done,  and  at  the  end  of  the  five  days  was  discharged 
and  released  without  any  legal  proceeding  whatever  having  been 
taken.  Held,  that  the  time  of  detention  was  unreasonable  as 
a  matter  of  law:  Cochran  v.  Toher,  14  Minn.  385.  The  plain- 
tiff was  arrested  without  any  warrant,  while  peaceably  passing 
along  the  streets,  on  the  charge  of  having  been  in  a  state  of 
intoxication  on  the  streets  in  the  morning  or  middle  of  the  same 
day,  though  he  was  sober  at  the  time  of  the  arrest,  and  was 
forcibly  taken  before  a  police-magistrate  without  any  authority 
being  shown,  tliough  demanded,  and  when  brought  before  the 
magistrate,  then  engaged  in  other  business,  he  was  (unlawfully) 
committed  to  the  calaboose  for  abusive  language  to  the  magis- 
trate, where  he  was  detained  overnight.  Held,  that  he  was 
entitled  to  recover:  Newton  v.  Locklin,  77  111.  103. 

§  1074.  By  Private  Person.  —  All  persons  whatever 
who  are  present  when  a  felony  is  committed,  or  a  dan- 
gerous wound  is  given,  are  bound  to  apprehend  the 
offenders.'  So  any  person  whatever,  if  an  affra}^  be  made 
to  the  breach  of  the  peace,  may,  without  a  warrant  from 
a  magistrate,  restrain  any  of  the  offenders  in  order  to 
preserve  the   peace ;^    but  after  there  is  an  end  of  the 

'  3  Hawk.  P.  C.  157;  Haudcock  v,  rant  or  calling  an  officer.  In  Illinois  it 

Baker,  2  Bos.  &  P.  2G0.  was  so  held,  in  the  case  of  boys  unlaw- 

-  Baynes  v.  Brewster,  2  Q.  B.  375;  fully  taking  a  horse  from  the  place 

Price  V.  Seeley,  10  Clark  &  F.  39.     A  where  the  owner  had  left  him;  Smith 

private  person  may  arrest  one  for  a  v.  Donelly,  66  111.  464. 
misdemeaoor  without  suing  out  a  war* 


§  1074 


FALSE  AEREST  AND   IMPRISONMENT. 


1840 


affray,  they  cannot  be  arrested  without  a  warrant.'  A 
private  person  may,  also,  in  a  case  of  strong  suspicion, 
arrest  for  a  felony  not  committed  in  his  presence,''  pro- 
vided tlio  felony  was  actually  committed.^  The  duty  of 
a  person  causing  an  arrest  to  have  the  party  convoyed 
without  delay  before  the  most  convenient  officer  autlior- 
ized  to  issue  u  warrant  is  not  discharged  by  delivering 
him  to  a  police-officer.  The  imprisonment  would  not  be 
legal  beyond  a  reasonable  time  for  procuring  a  warrant.^ 
So  a  ])rivate  person  is  bound  to  give  his  aid  to  an  officer 
apprcliending  an  offender,  and  is  not  civilly  liable  for 
doing  so;"'  nor  is  he  called  upon  to  examine  the  officer's 
authority."  But  where  a  party  making  an  arrest  is  not 
a  known  public  officer,  but  assumes  to  act  by  special 
appointment,  persons  aiding  him  are  bound  to  know 
whether  he  is  authorized  to  make  the  arrest;  and  if  he 
is  a  trespasser  for  want  of  authority,  they  are  also  tres- 
passers.^ Where  an  officer  who  is  present  at  the  com- 
mission of  an  offense,  or  on  hue  and  cry,  is  not  able  to 
make  an  arrest,  and  calls  in  other  officers,  or  the  posse, 
their  justification  is  as  broad  as  his  own.^  A  person  act- 
ing in  aid  of  an  officer  in  making  an  arrest  is  justified  in 
using  such  force  as  may  be  necessary  to  overcome  the 


'  Phillips  V.  Trull,  11  Johns.  486. 

=*  Holloy  /'.  Mix,  3  Wend.  354; 
20  Am.  Dee.  702;  Iteuck  v.  McGregor, 
32  N.  .1.  L.  70;  Allen  y.  Wtight,  8  Car. 
&  P.  ')'2'2;  Brockway  v.  Crawford,  3 
Jones,  433;  07  Atn.  Dec.  250;  Teagar- 
den  r.  Graham,  31  lad.  422;  Ryan  v. 
Donnelly,  71  111.  100;  Allen  v.  Leon- 
ard, 28  Iowa,  529;  Lauder  v.  Miles,  3 
Or.  3.-). 

^  Id.;  Burns  v.  iirben,  40  N.Y.  466; 
Holley  r.  .Mix,  3  Wend.  350;  20  Am. 
Dec.  002;  the  court  saying:  "My 
understanding  of  the  law  is,  that  if  a 
felony  has  in  fact  been  committad  by 
the  person  arrested,  the  arrest  may  be 
justified  by  any  person  without  war- 
rant, whether  there  is  time  to  obtain 
one  or  not.  If  any  innocent  person  is 
arrested  upon  suspicion  by  a  private 
indiTidual,  such  individual  is  excused 


if  a  felony  was  in  fact  committed, 
and  there  was  reasonable  ground  to 
suspect  the  jjerson  arrested.  But  if  no 
felony  was  committed  by  any  one,  and 
a  private  individual  arrest  without 
warrant,  such  arrest  is  illegal,  though 
an  officer  would  bo  justified  if  he  acted 
upon  information  from  another,  which 
he  had  reason  to  rely  on.  These  prin- 
ciples will  be  found  substantially  in 
1  Chitty's  Criminal  Law,  15. 

'  Ocean  S.  S.  Co.  v.  Williams,  69 
Ga.  251. 

"  Coyles  V.  Hurtin,  10  Johns.  85. 

"Main  v.  McCarty,  15  111.  441; 
McMahan  v.  Green,  34  Vt.  69;  80  Am. 
Dec.  665;  but  see  Mitchell  v.  State, 
12  Ark.  50;  54  Am.  Dec.  253. 

'  Dietrichs  i\  Schaw,  43  Ind.  175, 

8  ISklain  V.  McCarty,  15  111.  441. 


1841 


FALSE  ARREST  AND  IMPRISONMENT. 


§  1075 


resistance  offered,  if  he  uses  more,  ho  becomes  a  tres- 
passer, and  must,  if  led  astray,  in  the  opinion  of  the  jury, 
by  his  own  judgment,  be  responsible  for  the  consequences.* 
■\Vhorc  the  sheriff  is  endeavoring  to  make  an  arrest,  or 
preserve  the  peace,  and  has  commanded  others  to  assist 
liim,  he  is,  although  absent  in  some  other  place,  if  such 
absence  be  for  the  purpose  of  furthering  the  design,  to  be 
deemed  constructively  present,  so  as  to  justify  his  assist- 
aiits.'^  A  sheriff's  keeper,  rightfully  in  A's  shop,  may  not 
be  arrested  by  A  without  a  warrant,  although  A  has 
reasonable  cause  to  believe  that  the  keeper  has  stolen 
money,  unless  by  an  improper  omission  to  disclose  his 
business  in  the  shop  the  keeper  contributes  to  induce 
such  belief.' 

Illustrations.  —  A  notary  public  of  a  certain  county,  who 
acted  also  as  justice  of  the  peace,  authorized  a  special  constable 
to  execute  a  warrant  in  said  county  by  his  indorsement  on  the 
warrant,  signed  by  him  as  "  notary  public."  Held,  that  his 
failure  to  add  "  ex  officio  justice  of  the  peace  "  was  ro  excuse  for 
a  party  who  refused  to  aid  said  constable  in  making  an  arrest, 
as  said  party  was  bound  to  know  that  he  was  a  justice:  Coleman 
V.  State,  G3  Ala.  93.  The  mayor  of  a  city  was  in  a  bar-room 
late  one  night,  drinking,  singing,  and  dancing,  when  a  fight 
became  imminent,  and  the  mayor  ordered  one  of  the  parties 
present  to  jail.  Held,  that  an  action  for  false  imprisonment 
would  not  lie:  Johnston  v.  Moorman,  80  Va.  131. 


§  1075.    Who  Liable  for  —  Officer  Issuing  Process. — 

A  judge  or  other  officer  issuing  process  beyond  his  juris- 
diction is  civilly  liable  in  damages.*  A  justice  is  liable 
who  commits  a  person  brought  before  him  without  previ- 
ous complaint  or  information;^  or  who  commits  without 
jurisdiction;"  or  who  issues  a  warrant  on  a  complaint 
void  on  its  face  as  showing  that  the  larceny  charged  was 


1  Murdock  v.  Ripley,  35  Me.  472. 
'  Coylus  V.  Hurtin,  10  Johns.  85. 
'  Morley  v.  Chase,  143  Mass.  396. 
*  Bigelow  V.  Stearos,  19  Johns.  39; 
10  Am.  Dec.  189. 
U6 


*  Tracy  v.  Williams,  4  Conn.  107;  10 
Am.  Dec.  102;  Prell  v.  McDonald,  7 
Elan.  426;  12  Am.  Rep.  423. 

°  Sthreshley  v.  Fisher,  Hardin,  249; 
Comfort  V,  Fulton,  13  Abb.  Fr.  276. 


§  1070 


FALSE  ARREST   AND   IMPRISONMENT. 


1842 


barred  by  the  statute  of  liniitations.*  In  Massachusetts, 
a  justice  of  the  peace  who  issues  u  warrant  for  the  arrest 
of  a  person  under  an  unconstitutional  statute  is  liable 
for  false  imprisonment.^  Where  a  justice  of  the  peace 
having  tJio  power  to  commit  for  contempt,  as  in  Minne- 
sota, commits  a  person  for  contempt,  and  on  his  being 
liberated  on  habeas  corpus  recommits  him  on  a  fresh 
warrant  for  the  same  ofifense,  such  justice  is  not  amenable 
to  a  civil  action  for  false  and  malicious  imprisonment, 
though  his  action  in  making  the  second  commitment  was 
erroneous,  and  although  it  is  alleged  that  he  acted  mali- 
ciously.' 

§  1076.  Party  Causing  Arrest.  —  A  person  causing  the 
arrest  of  a  person  on  a  void  process  is  civilly  liable  in 
damages.*  So  also  where  he  procures  the  arrest  of  a  per- 
son without  just  cause;®  or  where  it  is  not  warranted  by 
law."  So  where  the  warrant  is  legal,  but  the  object  is  ille- 
gal, as  to  extort  money,  or  the  payment  of  a  civil  claim/ 
"Where  the  defendant  has  sufficient  real  property  to  satisfy 
a  judgment  recovered  against  him, trespass  will  lie  against 
the  judgment  creditor  who  sues  out  a  writ  of  capias  ad 
satisfaciendum,  under  which  the  debtor  is  imprisoned, 
although  such  writ  will  be  a  justification  to  the  officer 
executing  it.*  A  private  person  is  liable  in  damages  for  u 
wrongful  arrest  or  imprisonment  directed  or  authorized 
by  him."  One  who  procures  an  illegal  arrest  to  be  made 
is  liable  for  false  imprisonment,  though  not  present  aid- 
ing and  abetting.*"    Attendance  at  the  trial  and  proceed- 

111; 


'  Vaughn  v.  Congdou,  56  Vt, 
48  Am.  Rep.  758. 

2  Kelly  V.  Bemis,  4Gray,  83;  64  Am. 
Dec.  50;  Barker  v.  Stetson,  7  Gray,  54; 
66  Am.  Dec.  457.  Contra,  Henke  v. 
McCoril,  55  Iowa,  .378. 

^  Cooke  V.  Bangs,  31  Fed  Rep.  640. 

*  Luddington  v.  Peck,  2  Conn. 
700;  Bauer  v.  Clay,  8  Kan.  580;  Allen 
V.  Greenlee,  2  Dev.  370;  Thorpe  v, 
Wray,  68  Ga.  359.  As  to  liability  of 
attorneys,  see  Division  I.,  Attorneys. 


'^  Baird  v.  Householder,  3'.^  I'a.  ^m 
1G8;  Sullivan  v.  Jones,      *  ri        570. 

"  Curry  v.    Pring'  iins.  444; 

Green  v.  Ramsey,  2 '  oil;  Sleight 

V.  Leavenworth,  5  L  1 122. 

'  Hackett  v.  King,  i    \llcn,  58 

^  Allison  V.   Rheam,  ',i  Seri     &  R, 
137;  8  Am.  Dec.  644. 

*  McGarrahan  v.   Lavers,  15  R.  I. 
302. 

'0  Clifton  V.  Grayson,  2  Stew.  412; 
Floyd    V.    State,    12    Ark.    435;  4 


1842 


lS-13 


FALSE   ARREST   AND   IMPRISONMENT. 


§  1070 


asotts, 
arrest 

Uablo 

poaco 
Vlinne- 
i  bciiij; 
,  fresh 
lenablo 
nmoiit, 
out  was 
id  mali- 

sing  the 

iablo  in 

»t'  a  per- 

mtod  by 

ct  is  ille- 

I  claim.' 

[,0  satisfy 

against 

apias  ad 

msoned, 

officer 

Tcs  for  a 

thorized 

JO  made 

eiit  aid- 

roceed- 

3?  Pa.  Si 
570. 
ans.  444; 
oil;  Sleight 
!2. 

n,  5S 
ser;.      &  R. 

I,  15  R.  I. 

Stew.  412; 
k.    435;   4 


iiif^  with  the  action   after  knowledge  of  the  arrest  will 
luako  the  party  liable  therefor.'     But  if  one  does  nothing 
more   than  to  make  a  complaint  to  a  magistrate  against 
another  for  an  offense,  and  the  latter  is  arrested  under  a 
warrant  duly  issued  by  the  magistrate  who  has  jurisdic- 
tion of  the  subject-matter  and  of  the  party,  the  complain- 
ant is  not   liable   to   an   action   of  false   imprisonment, 
although  the  complaint  is  defective.*    One  who  has  pro- 
cured an  order  for  A's  arrest  in  a  civil  suit  is  not  liable  for 
the  act  of  the  sheriff  in  arresting  B  by  mistake,  he  being 
pointed  out  as  A  by  a  clerk  of  the  attorney  of  the  party 
procuring  the  order.'    A  party  cannot   protect   himself 
from  the  consequences  of  an  unlawful  arrest  by  offering 
as  a  defense  the  order  of  a  superior  officer.*     The  fact  that 
a  person  prefers  a  criminal  charge  against  another  before 
a  justice  of  the  peace,  and  is  a  witness  upon  the  trial  of 
the  accused,  and  employs  counsel  to  conduct  the  trial  on 
the  part  of  the  people,  will  not  render  him  liable,  in  an 
action  for  assault  and  battery  and  falsejmprisonmcnt,  for 
the  consequences  of  an  erroneous  conviction  by  the  justice, 
where  there  is  nothing  to  connect  him  with  the  unlawful 
imprisonment.^ 

Illustrations.  —  An  attorney  and  two  others  reported  to  a 
police-officer  that  a  forgery  and  larceny  had  been  committed  by 
plaintiff,  and  it  being  too  late  at  night  to  get  a  wan  ant,  the  offi- 
cer arrested  plaintiff  without  one,  the  three  persons  aforesaid  go- 
ing with  the  officer  to  tlio  house  wherein  plaiatiff  was  arrested, 
and  remaining  outside  while  the  officer  went  in  and  made  the 
arrest.  Held,  that  an  action  against  the  three  for  false  imprison- 
ment could  not  be  maintained:  Bcnham  v.  Vernon,  fy  Maokey, 
IS.  Defendant,  the  consul-general  of  Spain,  was  ordered  by 
ttlegraph  to  procure  the  arrest  and  extradition  of  plaintiff  for 
forgery.     Plaintiff  was  at  the  time  in  New  York,  but  was  on  the 


Am.  Doc.  250;  Stoddard  v.  Bird, 
Kirby,  65;  Burlingham  r.  Wylee,  2 
Knot,  152;  Stoycl  v.  Lawrence,  3 
D.i},  1;  Cooper  v.   Johnson,   81  Mo. 

m. 

•  Bi.ssoll  r.  Gold,  I  Wend.  210;  19 
Am,  Dec.  480. 


-Langfordr.  R.  R.  Co.,  144  Mass. 
4.31 ;    Murphy  r.  Walters,  .34  Mich.  180. 

^  Gearon  v.  Savings  Bank,  50  N.  Y. 
Sup.  Ct.  264. 

*  Swart  V.  Kimball,  43  Mich.  443. 

^  Pcckham  v.  Tomliusou,  6  Barb. 
253. 


r 


§1077 


FALSE   ABREST  AND  IMPRISONMENT. 


1844 


18^ 


eve  of  leaving  Tor  Canada.  The  date  of  the  forgery  was  not 
stated  in  the  (dispatches,  but  defendant  supposed  the  offense  to 
have  been  recent,  and  to  have  been  committed  since  the  ratifi- 
cation of  the  treaty  of  1877.  He  procured  plaintiff's  arrest 
accordingly.  The  crime,  in  fact,  was  committed  before  1877, 
Bo  that  plaintiff  could  not  be  held.  Held,  that  there  being 
probable  cause,  and  no  malice,  plaintiff's  action  for  false  impris- 
onment and  malicious  prosecution  cculd  not  be  nicnntained: 
Castro  v.DeUriarte,  IG  Fed.  Rep.  93.  The  president  of  an  electric- 
light  company  caused  plaintiff's  arrest  witliout  a  warrant  for 
cutting  down  a  polo  erected  against  his  protest,  and  without 
right,  in  a  lawn  in  front  of  plaintiff's  house.  Plaintiff  was 
locked  up  overnight,  then  taken  into  court,  and  soon  dis- 
cliarged.  Held,  that  an  action  for  false  imprisonment  was  main- 
tainable: Ross  V.  L^grjett,  61  Mich.  445.  Two  police-officers 
wrongfully  arrested  A  without  a  warrant,  and  placed  him  in  the 
lock-up.  The  city  marshal,  perceiving  that  the  arrest  was  with- 
out cause,  sent  him  to  the  railroad  station  under  the  custody 
of  en  officer,  the  assistant  marshal  taking  part,  where  he  was 
released  when  on  board  the  train.  Held,  that  the  five  officers 
were  jointly  liable  for  the  imprisonment  between  the  lock-up 
and  the  train:  Bnih  v.  Metcalf,  145  Mass.  274.  The  owner 
of  a  pleasure  resort  placed  his  son  in  charge  as  manager, 
and  engaged  special  police.  The  son  and  the  captain 
of  these  police  arrested  the  ticket-seller  at  the  place  on  a  false 
charge  of  larceny.  Held,  that  the  ticket-seller  had  a  right  of 
action  against  the  owner:  Clarh  v.  Starin,  47  Hun,  845.  De- 
fendant directed  the  attention  of  a  police-officer  to  the  acts  of 
plaintiff,  constituting,  as  he  supposed,  a  violation  of  a  city  hack 
ordinance,  and  committed  in  the  presence  of  the  officer.  Held, 
that  he  was  not  liable  for  false  imprisonment  on  the  arrest  of 
the  plaintiff,  although  the  charge  might  not  have  been  well 
founded:    Veneman  v.  Jones,  118  Ind.  41. 

§  1077.  Damages. — The  plaintiff  is  entitled  to  more 
than  nominal  damages  even  without  proof  of  special  dam- 
age;'  and  exemplary  damages  will   be  given  where  the 


1  Page  V.  Mitchell,  13  Mich.  65,  8G 
Am.  Dec.  75;  Jossulyii  r.  ?IcAlliater, 
22  Mich.  30i).  Where  there  wa3  no 
actual  malice,  and  plaintiff,  who  had 
neither  property  nor  business,  was 
imprisoned  from  Friday  to  Monday, 
^75  wa3  excessive:  Ogg  r.  Murdock, 
25  W.  Va.  139.  Arrest  and  detcn- 
tiou  for  three  hours  in  the  lock-up, 
with  uo  circumstances  of  special  in- 


dignity, does  not  justifiy  a  verdict  for 
82,917:  Woodward  i;.Glidden,33  Minn. 
108.  Plaintiff  having  been  for  a  sec- 
ond time  arrested  and  imprisoned 
without  lawful  authority,  taken  away 
from  her  home  and  family,  and  incar- 
cerated in  a  filthy  cell,  with  her  nurs- 
ing infant,  a  verdict  of  one  thousand 
dollars  was  not  excessive:  Fenelon  v. 
Butts,   53  Wis.  341.     For  false  im- 


1844 


1845 


FALSE  ARREST  AND   IMPRISONMENT. 


§  1077 


yas  not 
rense  to 
3  ratifi- 
3  arrest 
•e  1877, 
e  being 
inipris- 
itained: 
electric- 
•ant  for 
without 
tiff  was 
son  dis- 
is  inain- 
i-ofiicers 
m  in  the 
as  witli- 
custody 
he  was 
officers 
lock-up 
e  owner 
aanagor, 
captain 
1  a  false 
right  of 
15.    De- 
acts  of 
ty  hack 
Held, 
uiest  of 
een  well 


;o  more 
al  dum- 
ere  the 

erdict  for 
33  Minu. 
for  a  st!C- 
uprisonecl 
,keii  away 
md  incar- 
her  nurs- 
thousauil 
etielou  ('. 
false  im- 


arrest  was  malicious,  or  with  a  bad  motive.*  If  one,  in 
ignorauce  of  law,  causes  the  unlawful  arrest  of  another, 
the  offense  is  not  the  same,  and  the  liability  not  so  great, 
as  though  the  arrest  were  known  to  be  unlawful,  and 
caused  in  defiance  of  law.''  On  the  question  of  the  meas- 
ure of  damages,  evidence  of  prospective  damages  is  rele- 
vant;^ or  that  the  plaintiff  lost  his  situation  thereby;''  or 
that  the  officer  was  drunk;®  or  that  a  plea  of  justification 
was  made,  but  not  sustained;^  but  not  the  bad  treatment 
of  the  plaintiff  by  the  officers  who  arrested  him  7  The 
plaintiff's  costs  and  expenses  in  the  suit  in  which  he  was 
arrested  are  recoverable/  In  mitigation  of  exem.^lary 
damages,  evidence  is  admissible  that  the  defendant  ioted 
with  probable  cause,  or  without  malice;"  as,  that  the  jus- 
tice who  is  sued  erred  in  his  opinion  of  his  jurisdiction ;"* 
or  an  officer  acted  under  military  orders."  So  in  mitiga- 
tion of  exemplary  damages,  the  facts  and  circumstances 
of  the  arrest  may  be  shown;*''  or  the  circumstances  under 
which  the  affidavit  of  arrest  was  made."  The  jury  are 
the  judges  of  the  amount  of  damages  to  be  given,  and 


prisonment  on  board  a  vessel,  one 
hundred  dollars  was  a  sufficient  remu- 
neratioa  for  the  personal  annoyance, 
no  loss  resulting:  Young  v.  liossi,  30 
Fed.  Rop.  231. 

'  McCall  V.  McDoweU,  1  Abb.  U.  S. 
C.  C.  212;  Hamlin  v.  Spaulding,  27  Wis. 
3G0;  Brushaber  V.  Stegemann,  22  Mich. 
26G;  Wiley  v.  Keokuk,  6  Kan.  94; 
Hall  V.  O'Malley,  49  Tex.  70;  Whit- 
moro  0.  Allen,  33  Tex.  355;  Brown  v. 
Cliadsey,  39  Barb.  253;  Marsh  v.  Smith, 
49  in.  39G. 

^  EiV  V.  Taylor,  50  Mich.  549. 

^  Tliompson  v.  Ellsworth,  39  Mich. 
719. 

*  American  Exchange  Co.  v.  Patter- 
son, 73  lud.  438.  He  may  recover  not 
only  for  damages  up  to  the  time  of  the 
suit,  but  also  for  his  time  lost  after 
tlio  suit,  if  by  the  arrest  he  failed  to 
get  the  work  he  otherwise  would  have 
cbtaiued:  Thompson  v.  Ellsworth,  39 
Mich.  719. 

'  HaU  V.  OMaUey,  49  Tex.  70. 


^  Ocean  Steamship  Co.  v.  Williams, 
69  Ga.  251. 

'  Murdock  v.  R.  R.  Co.,  133  Mass. 
15;  43  Am.  Rep.  480.  Contra,  Abra- 
hams  V.  Cooper,  81  Pa.  St.  232. 

»  King  V.  Ward.  77  111.  603;  Blythe 
V.  Tompkins,  2  Abb  Pr.  468;  Ocean 
Steamship  Co.  v.  Williams,  69  Ga.  251. 
Contra,  Gibbs  v.  Rundlett,  58  N.  H.  407; 
Strang  v.  Whitehead,  12  Wend.  64. 

"  Comer  v.  Knowles,  17  Kan.  436; 
Miller  v.  Grice,  2  Rich.  27;  44  Am. 
Dec.  271;  Livingston  v.  Burroughs,  33 
Mich.  511;  Sleight  v.  Ogle,  4  E.  D. 
Smith,  445;  Sugg  v.  Pool,  2  .Stew.  & 
P.  196;  McCall  v.  McDowell,  1  Abb. 
U.  S.  C.  C.  212;  Bockwith  v.  Bean,  98 
U.  S.  266;  Ryers  v.  Wilson,  Minor,  407. 
But  not  as  to  actual  damages:  Comer 
V.  Knowles,  17  Kan.  436. 

'0  Miller  v.  Grice,  2  Rich.  27;  44  Am. 
Dec.  271. 

"  Carpenter  t\  Parker,  23  Iowa,  450. 

'■'  Johnson  v.  Von  Kettler,  (56  111.  63. 

"  Roth  V.  Smith,  41  111.  314. 


§§  1078,  1079      FALSE   ARREST  AND   IMPRISONMENT.       1846 

their  verdict,  though  large,  will  not  be  interfered  with  by 
the  court/  unless  it  was  the  result  of  passion  or  preju- 
dice.^ 


§  1078.  Evidence. —  The  bad  character  of  the  plaintiff 
may  be  given  in  evidence/  but  the  plaintiff  (unless  it  is 
put  in  issue  by  the  pleadings)  cannot  show  his  good 
character,*  unless  it  is  first  impeached  by  the  defendant.' 
Evidence  of  threats  made  to  an  officer  by  a  brother  of  the 
j^laintiff  after  the  arrest  is  admissible  for  the  purpose  of 
justifying  the  officer  in  putting  the  plaintiff  in  irons."  So 
Arhere,  in  an  action  against  a  police-officer  for  assault  and 
battory  and  false  imprisonment,  it  appeared  that  the  ofK- 
cer  was  informed  that  a  felony  had  been  committed  by 
the  plaintiff,  upon  which  the  arrest  was  made  by  the  offi- 
cer, the  plaintiff  resisting  and  continuing  his  resistance 
while  being  conveyed  to  the  station-house,  it  was  held 
that  evidence  that  the  plaintiff,  while  on  the  way  to  the 
station-house,  and  making  actual  resistance,  threatened 
that  he  would  murder  the  defendant  or  any  one  who  at- 
tempted to  arrest  him,  was  admissible  as  bearing  upon 
the  question  of  the  propriety  of  the  force  used  by  do- 
fendant.'' 

§  1079.  Pleading.  —  The  common-law  action  for  the 
false  imprisonment  is  trespass,*  and  not  case.®  It  is  not 
essential  (as  in  the  case  of  the  action  for  malicious  prose- 
cution) that  the  imprisonment  was  malicious  and  without 


'  Newton  v.  Locklin,  77  111.  103; 
Girdner  ,:  Taylor,  6  Heisk.  244. 

■■'Newton  r.  Locklin,  77  111.  103; 
Girdner  r.  Taylor,  6  Heisk.  244. 

"  Eogers  v.  Wilson,  Minor,  407;  12 
Am.  Dec.  61. 

*  Cochran  v.  Tolier,  14  Minn.  385. 

*  Am.  Ex.  Co.  V.  Patterson,  73  Ind. 
430. 

«  Cochran  v.  Toher,  14  Minn.  385. 
'  Fulton  V.  Staats,  41  N.  Y.  498. 
« Piatt  V.  Niles,   1    Edm.    Sel.    Cas. 
230;  Berry  v.  Hamill,  12  Serg.   &  R. 


210;  Price  v.  Graham,  3  Jones,  54n; 
Holly  ?•.  Carson,  39  Ala.  34");  Castro 
V.  De  Uriarte,  12  Fed.  Rep.  2o0;  AUea 
V.  Greenlee,  2  Dev.  370;  Stauber  v. 
Seymour,  5  McLean,  207;  Maher  v. 
Ashmead,  30  Pa.  St.  344;  72  Am.  Dec. 
708. 

\  Berry  v.  Hamill,  12 Serg.  &  R.  210; 
Price  r.  Graham,  3  Jones,  545;  Holly 
V.  Carson,  39  Ala.  345;  Piatt  v.  Nilos, 
1  Edm.  Sel.  Cas.  230;  but  see  Bar- 
hydt  V.  Valk,  12  Wcud.  145;  27  Am. 
Dec.  124. 


1846 


1847 


FALSE   AUREST  AKD  IMPEISONMENT. 


§1079 


probable  cause,'  and  the  complaint  need  not  allege  thls.^ 
The  particular  instrumentality  by  which  the  plaintiff  was 
deprived  of  his  liberty  should  not  be  set  out  in  the  com- 
plaint. If  the  circumstances  of  the  arrest  are  set  forth, 
they  may  be  struck  out  on  motion.'  A  declaration  aver- 
ring that  the  imprisonment  of  the  plaintiff  had  been  ef- 
fected by  means  of  threats  and  violence,  and  was  without 
any  reasonable  or  probable  cause,  contains  a  sufficient 
averment  of  malice  to  permit  proof  of  it,  and  to  justify  a 
recovery  for  an  aggravation  of  damages  on  that  ground.* 
A  complaint  need  not  aver  that  the  facts  complained  of 
■were  done  illegally,  or  wrongfully,  or  without  competent 
authority.^  A  plea  justifying  an  arrest  without  a  warrant 
on  suspicion  of  felony  should  set  forth  the  grounds  of 
suspicion.^  An  answer  which  attempts  to  justify  the  ar- 
rest and  imprisonment  complained  of  must  identify  the 
arrest  justified  with  the  arrest  complained  of,  or  it  will  be 
bad  on  demurrer.'  But  the  answer  sufficiently  identifies 
the  imprisonment  justified  if  it  is  stated  to  be  the  same 
imprisonment  complained  of  by  the  plaintiff.^  An  action 
for  false  imprisonment  and  one  for  malicious  prosecution 
may  be  joined." 


•  Colter  V.  Lover,  35  Ind.  285;  9  Am. 
Rep.  735;  Parsons  v.  Harper,  IGGratt. 
64;  Bonesteel  v.  Bonesteel,  30  Wis. 
511;  Akin  v.  Newell,  32  Ark.  605; 
Carey  v.  Sheets,  GO  Ind.  17;  Chrisman 
V.  Carney,  33  Ark.  316;  Howard  v. 
Lillaril,  17  Mo.  App,  228. 

■^  Gallimore  v.  Ammerman,  39  Ind. 
323;  Caroyv.  Sheets,  60  Ind.  17;  Akin 
V.  Nowell.  22  Ark.  605;  Colter  v.  Lov- 
er, 35  Ind.  285;  9  Am.  Rep.  735. 

» Eddy  V.  Beach,  7  Abb.  Pr.  17; 
Shaw  V.  Jayne,  4  How.  Pr.  119. 


*  Brushabei'  v.  Stegemann,  22  Mich. 
266;  Boaz  v.  Tate,  43  Ind.  60. 

*  Gallimore,  v.  Ammerman,  39  Ind. 
323. 

8  Wade  V.  Chaffee,  8  R.  I.  224;  5 
Am.  Rep.  572;  Boaz  v.  Tate,  43  Ind. 
09. 

'  Gallimore  t\  Ammerman,  39  Ind. 
323;  Young  v.  Warder,  94  Ind.  357. 

8  Scircle  v.  Necves,  47  Ind.  289. 

'  Castro  V.  Do  Uriarte,  12  Fed.  Rep. 
250.  Contra,  Ncbcozahl  v,  Townsead, 
61  How.  Pr.  353. 


TITLE  XII. 

MALICIOUS  PROSECUTION. 


wit 

put 

int( 

any 

the] 

isti 

dcati 

s'lid 

an  c 

of  a 

havi 

festl, 

whic 

essei 

was 

'Ch 
937;  r 

N.Y. 

Brown 

Morria 


TITLE  XII. 

MALICIOUS  PROSECUTION. 


CHAPTER   LIII. 

WHEN  ACTION  LIES, 

§  1080.     Malicious  prosecution  —  Criminal  prosecution. 

§  lOSI.     Civil  suit  and  arrest  or  attachment. 

§  10S2.     Civil  action  without  arrest  or  attachment. 

§  1080.    Malicious  Prosecution — Criminal  Prosecution. 

—  An  action  for  malicious  prosecution  lies  where  one 
with  malice  and  without  reasonable  and  probable  cause 
puts  the  criminal  law  in  force  against  another/  "  To  put 
into  force  the  process  of  the  law  maliciously,  and  without 
any  reasonable  and  probable  cause,  is  wrongful;  and  if 
thereby  another  is  prejudiced  in  property  or  person,  there 
is  that  conjunction  of  injury  and  loss  which  is  the  foun- 
cLation  of  an  action.'"'  "  There  is  no  similitude  or  analogy, 
said  Lord  Mansfield  in  Johnstone  v.  Sutton,^  "  between 
an  action  of  trespass  or  false  imprisonment  and  this  kind 
of  action.  An  action  of  trespass  is  for  the  defendant's 
having  done  that  which  upon  the  stating  of  it  is  mani- 
festly illegal.  This  kind  of  action  is  for  a  prosecution 
which  upon  the  stating  of  it  is  manifestly  legal.  The 
essential  ground  of  this  action  is,  that  a  legal  prosecution 
was  carried  on  without  a  probable  cause.     We  say  this  is 

'  Churchill  v.  Siggers,  3  El.  &  B.  Am.  Dec.   236;   Mowry  v.   Miller,  3 

937;  Dennis  v.  Ryan,  5  Lans.  350;  65  Leigh,  561;  24  Am.  Deo.  680. 

N.  Y.  385;  22  Am.  Rep.  635;  Shaul  v.  ^  Campbell,  C.  J. ,  in  Churchill u.  Sig- 

Brown,  28  Iowa,  37;  4  Am.  Rep.  151;  gers,  3  El.  &  B.  93G. 

Morris  v.   Scott,  21  Wend.   281;  34  »  1  Term  Rep.  554. 


§  1081 


MALICIOUS    PROSECrUTION. 


1852 


emphatically  the  essential  ground,  because  every  other 
allegiition  may  be  implied  from  this,  but  this  must  be 
substantially  and  expressly  proved,  and  cannot  be  im- 
plied." Tlic  action  will  lie  for  maliciously  and  without 
probable  cause  instituting  and  carrying  forward  proceed- 
ings under  a  search-warrant,*  The  right  of  action  for 
malicious  prosecution  is  several,  and  not  joint.''  The 
action,  it  is  said,  is  not  favored  by  the  courts.' 


§1081.    Civil    Suit  and  Arrest  or  Attachment.  —  A 

malicious  prosecution  without  probable  cause  will  also  lie 
where,  though  the  proceedings  are  civil,  and  not  criminal, 
they  involve  the  arrest  of  the  party  complaining,  or  the 
attachment,  sequestration,  or  other  interference  with  his 
property,  or  injure  him  in  some  special  manner.*  "  It 
may  be,"  as  said  in  a  late  case  in  New  York,  "that  the  rule 
stated  as  governing  these  actions  is  harsh.  It  may  be  that 
it  would  have  been  better  to  have  held  a  man  to  a  strict 
accountability  who, upon  a  claim  made,  deprived  his  debtor 
of  his  liberty,  if  he  failed  to  prove  his  demand  good;  but 


»  Whitson  V.  May,  71  Ind.  269. 

2  McLeod  V.  McLeoil,  73  Ala.  42. 

'  Savilo  r.    Roljcrta,    1   Ld.  Raym. 
374;  Reyiiol(l3  r.  Kcnuedy,  1  Wils.  233. 

*  1  Hilliaril  on  Torts,  443;  Mayer  v. 
Walter,  64  Pa.  St.  283;  McNameo  v. 
Minke,  49  Md.  122;  Sledge  v.  Mc- 
Laveii,  29  Ga.  64;  O'Grady  v.  Julian, 
34  Ala.  88;  Bump  v.  Betts,  19  Wend. 
421;  Whipple  t).  Fuller,  11  Conn.  582; 
29  Am.  Doc.  .330;  Watkins  v.  Baird,  6 
Mass.  506;  4  Am.  Dec.  170;  Lawrence 
V.  Hac^ermau,  56111.  68;  8  Am.  Rep. 
674;  Collins  V.  Hayte,  50111.  353;  Stew- 
art V.  Cole,  46  Ala.  646;  McKellar  v. 
Couch,  34  Ala.  336;  Donnell  v.  Jones, 
13  Ala.  490;  17  Ala.  689;  Tancred  v. 
Ley  land,  16  Q.  B.  669;  Herman  v. 
Brookerhoff,  8  Watts,  240;  Henderson 
V.  Jackson,  9  Abb.  Pr.,  N.  S.,  393;  3 
Sutherland  on  Damages,  699;  Cox  v. 
Taylor,  10  B.  Mon.  17;  Robinson  v. 
Kellum,  6Cal.  399;  Preston  w.  Cooper, 
1  Ddl.  489;  De  Medipa  v.  Grove,  10 
Q.  B.   168;    Savage    v.    Brewer,    16 


Pick.  453;  28  Am.  Dec.  255;Burkhart 
V.  Jennings,  2  W.  Va.  242;  I'ortman  v, 
Rottier,  8  Ohio  St.  548;  72  Am.  Dec. 
606;  Tomlinson  v.  Warner,  9  Ohio, 
103;  Nelson  v.  Danielson,  82  111.  545; 
Spaidsw.  Barrett,  57  111.  289;  11  Am. 
Rep.  10;  Farley  v.  Danks,  4  El.  &  B. 
493;  Sinclair  v.  Eldred,  4  Taunt.  7; 
Austin  V.  Debnam,  3  Barn.  &  C.  139; 
Churchill  v.  Siggera,  3  El.  &  B.  937; 
Besson  v.  Southard,  10  N.  Y.  23C; 
Barhaus  v.  Sanford,  19  Wend.  417; 
Pierce  v.  Thompson,  6  Pick.  193; 
Weaver  v.  Page,  6  Cal.  681 ;  Lindsay 
V.  Larned,  17  Mass.  190;  Hay  den  v. 
Shed,  11  Mass.  500;  Welser  v.  Thies, 
56  Mo.  89;  HoUiday  v.  Sterling,  62 
Mo.  321;  Williams  v.  Hunter,  3  Hawks, 
545;  14  Am.  Dec.  597,  and  note;  Mc- 
Cullough  V.  Grishobber,  4  Watts  &  S. 
201;  Spenglerw.  Davy,  15  Gratt.  381; 
Wood  V.  Weir,  5  B.  Mon.  544 ;  FuUeii- 
wider  v.  McWilliams,  9  Bush,  389; 
Closson  V.  Staples,  42  Vt.  209;  1  Am. 
Rep.  316;  Hoyt  v.  MacoQ,  2  Col.  113. 


1853 


WHEN    ACTION    LIES. 


1081 


such  has  not  been  the  view  of  courts,  and  it  is  too  late  now 
to  change  it."  ^  The  court  was  speaking  of  an  arrest  in  a 
civil  case,  as  allowed  by  the  laws  of  Rhode  Island,  in  the 
action  before  it. 

Thus  an  action  will  lie  where  a  civil  suit  is  maliciously 
and  without  probable  cause  begun  by  the  arrest  of  tho 
party  defendant;''  for  maliciously  and  without  cause  in- 
stituting proceedings  in  bankruptcy  against  another;^  for 
maliciously  attaching  the  party's  property,'  even  though 
there  was  an  indebtedness  and  ground  for  a  suit;®  for 
the  malicious  institution  of  proceedings  to  have  one 
declared  insane;"  for  falsely  "suing  out  and  prosecuting 
before  the  commissioner  of  tho  general  land-office  of  the 
United  States,  an  officer  having  jurisdiction,  etc.,  a  caveat 
impeaching  the  plaintiff's  entry  [of  public  lands],  on  the 
ground  and  allegation  of  fraud  ";^  entering  up  a  judg- 
ment and  suing  out  execution  after  the  demand  is  satis- 


1  Ricliardaon  v.  Virtue,  2  Hun,  208. 
Aiul  see  Emerson  w.  Cochran,  111  Pa. 
St.  U19. 

H'oUins  V.  Hayte,  50  111.  337;  99 
Am.  Dec.  521;  Burhans  ?>.  Sanford, 
19  Wcud.  417;  Watkina  v.  BairJ,  G 
Mass.  500;  4  Am.  Dec.  170;  Plummer 
V.  Dennett,  6  Me.  421;  20  Am.  Dec. 
31G;  Turner  v.  Walker,  3  Gill  &  J. 
377;  22  Am.  Dec.  329. 

"  Chapman  v.  Pickersgill,  2  Wils. 
145;  Johnson  v.  Emerson,  25  L.  T., 
N.  S.,  337;  Whitworth  v.  Hall,  2  Barn. 
&  Atlol.  695;  Farley  v.  Danks,  4  El. 
&  B.  493;  Brown  v.  Chapman,  3  Burr. 
1418. 

*  Preston  v.  Cooper,  1  Dill.  589; 
Williams  ,:.  Hunter,  3  Hawks,  545; 
14  Am.  Dec.  597;  Wood  v.  Weir,  5  B. 
Moil.  544;  McCullou^h  v.  Grishobber, 
4  Watts  &  S.  201;  Walser  w.  Thies,  50 
Mo.  89;  Holliday  v.  Sterling,  02  Mo. 
321;  Fnlleu  wider  v.  Me  Williams,  7 
Bush,  :i89;  Spenglerv.  Davy,  ISGratt. 
381;  Hayden  v.  Shed,  11  Mass.  500; 
Liiulsay  ik  Larned,  17  Mass.  190; 
Piorco  V.  Thompson,  G  Pick.  193; 
Nelson r.  Danielson,  82  HI.  545;  Shaver 
r.  White,  6  Munf.  110;  8  Am.  Dec. 
730.    Where  aa  attachment  is  wrong- 


fully sued  out  ou  grounds  untrue  in 
fact,  actual  damages  may  be  recovered 
though  there  was  probable  cause: 
Carothers  v.  Mcllhenny  Co.,  G3  Tex. 
138;  Bear  v.  Marx,  03  Tex.  298,  And 
giving  a  bond  of  indcnmity  as  required 
by  statute  does  not  defeat  the  action: 
Lawrence  v.  Hagerman,  5G  111.  08;  8 
Am.  Hep.  674.  The  defendant  cannot 
justify  or  mitigate  tho  wrongful  at- 
tachment of  goods  by  showing  that  he 
offered  to  return  tho  property  on  the 
next  day  in  the  same  condition:  Car- 
penter V.  Dresser,  72  Mo.  377:  39  Am- 
liep.  3.  And  it  is  no  defense  that  de. 
icndant,  before  taking  out  the  attach- 
ment, heard  that  some  other  creditor 
w;is  going  to  attach:  Carothers  v.  Mc- 
llhenny Co.,  63  Tex.  138. 

^  Tomlinson  v.  Warner,  9  Ohio,  103; 
Spaids  V.  Barrett,  57  111.  289;  11  Am. 
Rep.  10;  Savage  v.  Brewer,  10  Pick. 
453;  28  Am.  Dec.  255;  Fortman  v. 
Rottier,  8  Ohio  St.  548;  72  Am.  Dec. 
600;  Herman  v.  Brookerhoff,  8  Watts, 
240. 

®  Lockenour  v.  Sides,  57  Ind.  360; 
26  Am.  Rep.  58. 

^  Hoyt  V.  Macon,  2  Col.  113. 


§  1081 


MALICIOUS   PROSECUTION. 


1854 


fiod;'  suing  out  an  attachment  for  an  amount  greatly  in 
excess  of  tlio  dobt;^  causing  an  arrest  for  more  than  is 
due;''  levying  an  execution  for  an  excessive  amount;* 
causing  an  aiTcst  when  the  party  cannot  procure  bail, 
and  keeping  him  imprisoned  until  ho  is  forced  to  sur- 
render  property  to  which  the  prosecutor  is  not  entitled;^ 
or  for  maliciously  suing  out  an  injunction," — though  it 
has  been  held  that  in  such  cases  the  only  remedy  is  on  the 
attachment  bond.''  A  party  who  has  been  fraudulently 
induced  to  come  Avithin  the  jurisdiction  of  a  court  so  us 
to  render  him  or  his  property  amenable  to  its  process 
may  have  his  action  therefor.® 

iLLUSTUiiTioNS.  —  A  Corporation  mahciously  sued   plaintiiT, 
and,  on  ex  imrtc  appUcation,  obtained  an  injunction  restrain- 


»  Barnett  v.  Rccd,  51  Pa.  St.  190; 
88  Am,  Dee.  574. 

-  iSavago  V.  IJrewer,  16  Pick.  453; 
28  Am.  Dec.  255.  Where  one  settles 
a  suit  against  him  by  allowing  all  that 
was  claimuil  in  it,  ho  cannot  base  an 
action  for  malicious  prosecution  on 
such  suit:  Sartwell  v.  Parker,  141 
Mass.  405. 

'^  Jenings  v.  Florence,  2  Com.  B., 
N.  S.,  407;  Austin  v.  Dobnam,  3  Barn. 
&C.  139.  Tliu  intentional  non-entry  of 
a  writ  in  which  property  has  been  at- 
tached, anil  the  bringing  a  new  action 
for  the  same  cause,  attacliing  the  same 
and  other  property,  is  held  no  ground 
for  an  action:  Johnson  v.  Reed,  130 
Mass.  421. 

*  Sommer  v.  Wilt,  4  Serg.  &  R.  19; 
Churchill  ;-.  Siggers,  3  El.  &  B.  929, 
the  court  saying:  "To  put  into  force 
the  process  of  the  law  maliciously, 
and  without  any  reasonable  or  prob- 
able cause,  is  wrongful;  and  if  there- 
by another  is  i)rejudiced  in  property 
or  person,  there  is  that  conjunction  of 
injury  and  loss  which  is  the  founda- 
tion of  an  action  on  the  case.  Pi-ocess 
of  execution  on  a  judgment  seeking  to 
obtain  satisfaction  for  the  sum  recov- 
ered is  priiiKi  facie  lawful;  and  the 
creditor  cannot  be  rendered  liable  to 
an  action,  the  debtor  merely  alleging 
and  proving  that  the  judgment  had 
been  partly  satislicd,  and  that  execu- 
tion was  suet    out  for  a  larger  sum 


than  remained  due  upon  tlie  judgment. 
Without  malice  and  the  want  of  prol)- 
able  cause,  the  only  remedy  for  the 
judgment  debtor  is  to  apply  to  tlio 
court  or  a  judge  that  he  may  be  dis- 
charged, and  that  satisfaction  may  be 
entered  upon  the  payment  of  tlie 
balance  justly  due.  But  it  would  not 
be  creditable  to  our  jurisprudence  if 
the  debtor  had  no  remedy  by  an  ac- 
tion where  his  person  or  his  goods 
have  been  taken  in  execution  for  a 
larger  sum  than  remained  due  on  tlio 
judgment,  this  having  been  done  by 
the  creditor  maliciously  and  without 
reasonable  or  probable  cause;  i.  o.,  tlio 
creditor  well  knowing  that  the  sum 
for  which  the  execution  is  sued  out  is 
excessive,  and  his  motive  beuig  to  op- 
press and  injure  the  debtor.  The  court 
or  judge  to  wiiom  a  summary  applica- 
tion is  made  for  the  deI)tor's  liberation 
can  give  no  redress  beyond  putting  an 
end  to  the  process  of  execution  on 

Eayment  of  the  sum  due,  although, 
y  the  excess,  tho  debtor  may  hiive 
suffered  long  imprisonment,  and  have 
been  utterly  ruined  in  his  circum- 
stances." 

"  Grainger  v.  Hill,  4  Bing.  N.  C.  212; 
Krug  V.  Ward,  77  111.  G03. 

"  Robinson  v.  Kjllum,  6  Cal.  399; 
Cox  V.  Taylor,  10  B.  Mon.  17. 

'  Gorton  v.  Brown,  27  111.  489;  81 
Am.  Dec.  245. 

8  Wauzer  v.  Bright,  52  111.  35. 


1855 


WHEN   ACTION   LIES. 


§  1082 


ing  him  from  entering  on  certain  coal  lands,  and  a  year  there- 
uftor  dismissed  its  action.  Held,  tliat  lie  could  maintain  an 
action  for  malicious  prosecution:  Nctvark  Coal  Co.  v.  Upmuy 
40  Oiiio  St.  17.  Defendants,  claiming  to  bo  creditors  of  tho 
pliiintift's  husband,  maliciously  and  without  probable  cause 
filed  a  notice  of  Us  pendens  and  complaint  affecting  her  lot  of 
land,  charging  that  her  title  thereto  was  fraudulent  as  against 
Buch  creditors.  Held,  to  state  a  good  cause  of  action:  Smith  v. 
Smith,  20  llun,  555.  A  mortgage  creditor  levied  on  tho  prop- 
erty, contrary  to  an  agreement  not  to  enforce  the  mortgage 
within  a  certain  time.  Held,  that  the  debtor  had  a  right  of 
action  for  the  actual  injury,  without  proof  of  malice  or  want  of 
probable  cause:  Juchter  v.  Boehra,  67  Ga.  534.  A  sued  li  upon 
a  note.  B  pleaded  payment,  and  also  sought  to  set  off  a  larger 
claim  than  the  amount  of  the  note.  There  was  a  verdict  in  B's 
favor  upon  the  set-ofF.  Held,  that  B  was  thereby  concluded 
from  suing  A  for  a  malicious  prosecution  founded  upon  the 
feuit  on  the  note:  Dolan  v.  Thompson,  129  Mass.  205. 

§  1082.    Civil  Action  without  Arrest  or  Attachment.  — 

Whether  tho  action  will  lio  where  no  special  damage  is 
alleged  over  and  above  the  mere  loss  of  time  and  money 
consequent  upon  being  called  upon  to  defend  a  civil  suit 
prosecuted  maliciously  is  a  question  on  which  the  au- 
thorities are  not  agreed.  In  England  it  is  held  that  tho 
action  will  not  lie,  because  by  statute  in  that  country  tho 
successful  party  is  given  his  costs  from  the  losing  party 
in  all  cases,  and  this  is  considered  to  be  a  sufficient  rem- 
edy.'    Most  of  the  earlier  cases  in  tho  United  States,  and 


'  Bac.  Abr. ,  tit.  Action  on  tho  Case, 
H,  p.  141;  Bull.  N.  P.  11;  Wateror  u 
Freeman,  Hob.  205;  Templo  v.  Kil- 
lingworth,  12  Mod.  4;  Savilo  v.  Rob- 
erts, 12  Mod.  208;  Parker  v.  Langley, 
Gilb.  Caa.  1G3;  Goslin  v.  Wilcock,  2 
Wils.  305;  Purton  v.  Honnor,  1  Bos.  & 
P.  205;  Cotterell  v.  Jones,  11  Com. 
B.  715.  In  Cotterell  v.  Jones,  11 
Com.  B.  715,  the  action  was  against 
two  persons  for  conspiring  together 
maliciously  and  vexatiously  to  com- 
mence an  unfounded  action  against 
the  plaintiff  in  the  name  of  a  third,  a 
pauper,  and  in  pursuance  thereof  so 
commencing  and  prosecuting  it, 
whereby,  although  tne  pauper  was 
nonsuited,    the   plaintiff  was  unable 


to  obtain  his  costs  against  him.  The 
plaintiff  had  a  verdict  for  the  amount 
of  tho  costs  incurred  by  liim  in  the 
former  action,  but  on  appeal  tlio 
judgment  was  set  aside  on  a  question 
of  pleading,  the  court  liolding  that 
the  declaration  did  not  show  a  cause 
of  action,  because  it  did  not  allege 
that  on  the  nonsuit  tho  costs  had 
been  awarded  by  tho  court  against  the 
pauper.  "It  is  conceded,"  said  Jer- 
vLs,  C.  J.,  "that  if  the  party  so 
wrongfullj'  put  forward  as  plaintiff  in 
the  former  action  had  been  a  person 
in  solvent  circumstances,  this  action 
could  not  have  been  maintained,  in- 
asmuch as  the  award  of  costs  to  the 
defendant  (the  now  plaintiS)  upon  the 


•nrai 


§1082 


MALICIOUS   PROSECUTION. 


1850 


a  few  of  the  recent  ones,  follow  the  English  rule.'  But 
others,  and  it  would  seem  on  better  grounds,'^  sustuin  the 
action.' 


failure  of  that  action  would,  in  con- 
templatiou  of  law,  liavo  been  a  full 
compeuHatinn  to  liiin  fur  tho  unjust 
vuxatiun,  iiiiil  coii8C(iuontly  hu  would 
have  sustained  no  damago."  Maulo, 
J.,  said:  "It  id  conueded  that  thiti  ac- 
tion could  not  bo  maintained  in  re- 
Bpiict  of  extra,  costs,  that  is,  costs 
ultra  the  coats  given  by  statute  to  a 
successful  defendant."  And  Talfourd, 
J.,  added:  "  Itaijpeara  from  tho  whole 
current  of  authorities  than  an  action 
of  this  description,  if  maintainable  at 
all,  is  only  maintainable  in  respect  of 
legal  damago  actually  sustained;  and 
that  tho  mere  expenditure  of  money 
by  tlio  plaintiff  in  tho  defense  of  the 
action  brought  against  him  does  not 
constitute  such  legal  damage,  but  that 
the  only  measure  of  damage  is  tho 
coats  ascertained  by  the  usual  course 
of  law.  Tlicrc  being  no  averment  in 
this  declaration  that  any  such  costs 
were  incurred  or  awarded,  no  legal 
ground  is  disclosed  for  the  mainte- 
nance of  tlie  action." 

'  Bitz  V.  .Meyer,  40  N.  J.  L.  252;  29 
Am.  Rep.  233;  \Vetinoro  v.  MoUinger, 
C4  Iowa,  741;  52  Am.  Rep.  405;  Potts 
V.  Imlay,  4  N.  J.  L.  330;  7  Am.  Doc. 
603;  Cade  v.  Yocum,  8  La.  Ann.  477; 
Woodmansie  v.  Logan,  2  N.  J.  L.  93; 
Taylor  v.  Wilson,  1  N.  J.  L.  362; 
Thomas  v.  Rouse,  3  Brev.  75;  Ray  v. 
Law,  I  Pet.  C.  C.  207;  McNamee  v. 
Minke,  49  Md.  122;  Mayer  w.  Walter, 
64  Pa.  St.  283;  Muldoon  v.  Rickey,  103 
Pa.  St.  110;  44  Am.  Rep.  34C;  Barry  v. 
Salt  Co.,  14  Phila.  124;  Smith  v.  Hin- 
trager,  67  Iowa,  109;  Eberly  v.  Rupp, 
90  Pa.  St.  259. 

'^  See  articles  on  "The  Malicious 
Prosecution  of  a  Civil  Suit "  in  Ameri- 
can Law  Register  for  May  and  June, 
1882,  in  which  all  the  authorities  are 
cited  and  reviewed  at  length. 

3  Closson  V.  Staples,  42  Vt.  209;  I 
Am.  Rep.  316;  McCardle  v.  McGinley, 
86  Ind.  538;  44  Am.  Rep.  343;  Eastin 
V.  Bank  of  Stockton,  66  Cal.  123;  56 
Am.  Rep.  77;  Whipple  v.  Fuller,  11 
Conn,  582;  29  Am.  Dec.  330;  Van- 
duzer  v.  Linderman,  10  Johns.  106; 
Pangburn  v.  Bull,  I  Wend.  345;  Cox 


V.  Taylor,  10  B.  Mon.  17;  Marbourg  r, 
Smith,  11  Kan.  554;  Woods  v.  Fin- 
nell,  13  Bush,  C29j  Payne  r.  Doncgaii, 
9  111.  App.  566;  Hoyt  v.  Macoul,  J 
Col.  113;  Johnson  v.  Meyer,  36  ]..\. 
Ann.  .333;  Hall  v.  Learning,  31  N.  .!, 
L.  .321;  86  Am.  Dec.  213.  An  actirm 
may  be  maintained  for  maliciously, 
and  without  probable  cause,  insti- 
tuting and  prosecuting  an  action  in 
forcible  entry  and  detainer:  Pope  /•, 
Pollock,  Ohio,  1889.  In  Closson  r. 
Staples,  42  Vt.  209,  1  Am.  Rep.  31(;, 
tho  court,  in  an  exhaustive  oijinion, 
says:  "The  defendant  requested  tliu 
court  to  charge  the  jury  that  tho 
action  could  not  be  maintained  with- 
out proof  that  C.  was  arrested  or  his 
property  attached  in  that  original  suit. 
This  leads  us  to  consider  whether  iiu 
action  for  malicious  prosecution  of  a 
civil  suit  without  reasonable  or  prol)- 
able  cause  will  lie  whore  the  process 
in  the  suit  so  maliciou.sly  prosecuted 
is  by  summons  only.  In  England  lic- 
foro  the  statute  of  Marlbridge  no  costs 
were  recoverable  in  civil  actions.  It 
seems  that  before  the  statutes  enti- 
tling the  defendant  in  civil  actions  to 
costs,  if  the  suit  terminated  in  his 
favor,  he  might  support  an  action  at 
common  law  against  the  plaintiff  if 
the  proceeding  was  malicious  and 
without  probable  cause.  But  in  Eng- 
land, since  the  statutes  which  gave 
costs  to  the  defendant  in  all  actions 
in  case  of  a  nonsuit,  or  verdict  against 
the  plaintiff,  and  in  other  stages  of 
the  cause,  it  seems  that  no  action  can 
be  maintained  merely  in  respect  of  a 
civil  suit  maliciously  instituted,  ex- 
cept in  some  cases  under  legislative 
provisions,  and  perhaps  excepting 
cases  where  the  defendant  failed  to 
obtain  the  ordinary  costs  owing  to  tlie 
insolvency  of  a  third  party  in  wliose 
name  the  suit  was  prosecuted.  It  is 
said  that  those  statutes  give  costs  to 
successful  defendants  by  way  of  dam- 
ages against  the  plaintiff  pro/also  da- 

more There  does  not  appear  to 

be  any  conflict  in  the  authorities  that 
where  anything  is  done  maliciously, 
besides  commeucing  and  prosecuting 


1857 


WHEN   ACTION   LIES. 


g  10S2 


Tf  i.T'sTUATTONS.  —  C.  hafl  signed  a  prominpory  note  us  surety 
fur  otK!  K.,  payable  to  S.  or  bearer.     K.  paiJ  tb*;  note  at  iiiatu- 

a  iii.ilii'i"iiH  or  VL'XiitioUH  (ictioii,  a  suit    tho    luljiulioatioii    nf    wliidi    a    civil 
fur  llir  (iaiu.i^'cs  MUtitaiiuiil  l)y  tnwU  ;u:t    action,  whim  Kinhi^IiI  ami  proiLcutml 

iii.iV  li'' i>i:uiii:iinc(l Itissaiiliii     in  gond  faith,  is  ,i  (  I  lim  of  rij^iit;  ami 

in  onh.T  to  idaci!  Ill  aihiiini.stration  of 
tiu)  law  upon  ro-> 'iiiiiililo  j^roiiudd,  in 
rospoct  to  tho  riulit  I  a-isurtoil  ami  rn- 
covorable  eoHts,  lh<  cxpiiiihes  of  liti- 
gating tiiu  claim-!  of  tlio  parties,  over 
and  aliovo  ccrtaiii  items  of  costn, 
which  the  Htatntc  all  \vh  tiie  prevailing 
party  to  recover,  shuuld  he  litirne  hy 
the  respective  pirtic  s  liy  whom  nueh 
expenses  are  ini'Ui  ri  d,  witliout  regard 
to  tho  result  of  tlio  suit.  Ihit  tlie  sys- 
tem of  taxing  cost<  under  our  statute, 
except  in  a  very  l\w  eases,  was  en- 
acted with  referi'iKH   to  suits  hrouglit 


HiiiiK^  I'f  the  eases  that  where  tlie  pro- 
cess in  tiui  malicious  and  unfoumh  d 
suit  i-;  hy  attaulMuent.  an  action  \\  ill 
liu  f(.f  the  damage  tlio  party  sustains, 
liL'causi'  in  such  case  no  cost  is  allowid 
whii'li  can  l)e  a  com])enaati()n  for  tiiu 
jicrsiiiial  injury.  IJut  we  think  the 
fmiilimeiital  principles  and  anahpi.;ii's 
of  the  eoiiiMion  law,  as  laid  down  hy 
tli(!  text-writers  and  early  deoisioa.-;  of 
tlif  ]"ji-lish  courts,  do  not  make  the 
iiiaiiiu'r  in  whieli  the  service  of  the 
iiiMi  c-is  was  made  essential  to  niain- 
tiiiii  the  action. 


The  coninion  law  de- 


cliire.f  that  fur  every  injury  tiiere  is  a    and  prosecuted  in  ;;iii,d  faith.   In  suits 


r"nit'ily.  'I'lie  early  English  cases  show 
vory  eli:ar!y  that  heforo  the  statutes 
enlitliug  defendants  to  costs  existed, 
tluy  had  a  nnnedy  at  common  law  lor 
injmirs  sustaini.'d  hy  reason  of  suits 
which  were  malicious  and  without 
|iri)ljalile  cause.  It  would  seem,  Imw- 
oviir,  fi'om  more  recent  ilecisions,  that 
tliu  jiresent  English  rule,  whieli  re- 
stricts or  limits  the  right  of  action  for 
iiialieiously  prosecuting  civil  suits 
withuut  prohahle  cause,  stands  maiidy 
updii  the  ground  that  the  costs  wliiuh 
tlustatut;^  provides  tho  successful  de- 


sobroughtanil  prcmiuted,  the  defend- 
ant may  ho  subjicti  d,  or  he  may  sub- 
ject himself,  to  exiniisos  not  recover- 
able, even  if  the  Miit  terminates  in 
his  favorj  but  of  this  ho  has  no  legal 
ground  to  comphiiu  when  tiio  suit  ia 
brought  and  prosocutod  in  good  faith, 
because  it  is  tiie  onlii  :iry  and  natural 
C(m30(juence  of  a  utiiforin  and  well- 
regulated  system  to  wluch  all  parties 
in  civil  actions  are  reipiired  to  con- 
form. But  where  th.i  action  is  brought 
and  prosecuted  maliciously,  and  with- 
out reasonable  or   ;iro1)ablc  cause,  the 


tiUII 

■>1'1' 


)ut  umler  their  rule  it  does  not 
ar  that  the  right  of  action  is  ro- 


foiiilaiit  sliall  recover  are  an  adiMjuate    plaintiff  asserts  no  claim  in  respect  to 
fiiiiipensation  for  the  damages  he  sus-     which  ho  had  any  ri^ht  to  invoke  tlie 

aid  of  the  law.  \n  such  ease  tho 
plaintiff,  by  an  alume  of  legal  i)rocess, 
unjustly  subjects  the  defendant  to 
damages  which  are  not  fully  compen- 
sated by  the  costs  ho  recovers.  Tho 
plaintiff  in  such  case  has  no  legal  or 
e(juitable  right  to  el  jm  that  the  rule 
of  law  wliich  allows  a  suit  to  be 
brought  and  pr<i.seouled  in  good  faith 
without  liability  of  tlu;  plaintiff  to  pay 
the  defendant  daiuaifes,  except  by 
M'ay  and  to  the  extent  of  tho  taxable 
costs  only,  if  judgment  be  rendered  in 
his  favor,  should  extend  to  a  case 
where  the  suit  was  maliciously  prose- 
cuted without  probaljle  cause.  But 
where  tho  damages  sustained  by  tho 
defendant,  in  detendiug  a  suit  mali- 
ciously prosecuted  without  reasonable 
or  probable  cause,   exceed  tlio   costs 


stricli^d  to  those  cases  where  the  pro- 
cusii  is  by  attachment.  Tile  justice  or 
cijuity  of  the  English  rule,  as  a  ]iai't 
(if  their  system  of  jurisprudence, 
tliure  is  no  occasion  to  consider.  But 
ill  (lur  o\Mi  state  not  only  the  mode  of 
pniccss  in  civil  actions,  but  also  the 
general  provisions  of  our  statute  for 
t(i.\ing  costs  to  tho  defendant  when 
tlio  ^uit  terminates  in  his  favor,  are 
oiipiise  I  to  making  it  essential  to  sus- 
tain an  action  for  the  malicious  proso- 
cutieu  of  a  civil  suit  without  proliablo 
cause,  that  his  body  was  arrested  or 
his  ]iroperty  attached Our  stat- 
ute hy  which  tho  prevailing  party  re- 
covers certain  costs  incurred  in  the 
prosecution  or  defense  of  a  civil  action 


stands  u|)(in  the  ground  that  certain  obtained  by  him,  lie  has,  and  of  right 

claims  and  rights,  in  respect  to  the  should  have,  a  remedy  by  actiou  on 

matters  in  issue,  are  asserted  that  iu  the  case." 
117 


11082 


MALICIOUS   PROSECUTION. 


1858 


fity,  but  S.  failed  to  deliver  it  up,  alleging  that  he  had  lost  it; 
and  K.  afterwards  enlisted  in  the  army,  and  died  in  another 
state,  leaving  no  property.    S.,  .^fter  the  decease  of  K.,  produced 
the  note,  claiming  that  it  had  not  been  paid,  demanded  pay- 
ment of  C,  and  threatened  trouble  if  the  matter  was  not  settled. 
Subsequently  S.  procured  one  B.  to  commence  a  suit  against 
C.  on  it,  in  which  case  judgment  was  finally  rendered  against 
B.  on  the  merits.    C.  brought  an  action  against  &.  on  these  facts, 
alleging  that  ho  could  not  recover  any  of  his  taxable  costs 
against  B.,  as  he  was  worthless,  and  that  he  had  been  put  to 
"great  trouble,  annoyance,  and    expense  in  looking  up  wit- 
nesses, preparing  his  defense  to  said  suit,  and  employment  of 
coun.sel,  and  atteading  said  court,  and  other  large  expenses  of 
time,  and  n^.ouey,  and  teams."     Held,  that  C.  was  entitled  to 
recover:    Closson  v.  Staples,  42  Vt.  209;    1  Am.  Rep.  316.     M. 
and   L.,  an  partners,  had  sued  S.  for  slander,  the  case  being 
dismissed  at  M.  and  L.'i  costs.     S.  therefore  brought  an  action 
for  malicious   prosecution.     Held,  that  the  action  would   lio: 
Marhonrg  v.  Sviith,  11  Kan.  554.     A  and  B  were  citizens  of 
Kentucky.     B,  for  the  purpose  of  annoying  A,  and  subjecting 
him  to  unnecessary  expense  and  trouble,  falsely  pretended  to 
change  his  residence  to  the  state  of  Indiana,  and  went  to  that 
state,  not  for  the  purpose  of  residing  there  in  good  faith,  but  to 
enable  him  to  institute  a  suit  in  the  United  States  circuit  court 
for  the  district  of  Kentucky,  for  an   assault  alleged  to  have 
been  committed  by  A  on  B.     Claiming  his  residence  in  In- 
diana,   he   falsely   and   maliciously,  and   without  reasonable 
cause,  instituted  a  suit  against  A  for  the  said  assault.     A  trial 
was  hnd,  and  judgment  rendered  against  B,  and  A  was  there- 
by put  to  great  expense  defending  the  suit,  for  which  he  claimed 
damages.     Held,  that  the  action  would  lie:   Woods  v.  FinneU, 
13  Bush,  fi29. 


1858 


1S59 


KEQUISITES    OF    THE    ACTION.       §§  10S3,  1084 


ost  it; 
nother 
)duced 
i  pay- 
settled. 
igain?t 
xgainst 
e  facts, 
e  costs 
put  to 
up  wit- 
nent  of 
iiises  of 
itled  to 
16.    M. 
le  being 
1  action 
aid   lie: 
izens  of 
bjecting 
inded  to 
t  to  that 
h,  but  to 
uit  court 
to  have 
;e  in  In- 
asonablo 
A  trial 
s  there- 
claimed 
Finnell, 


CHAPTER   LIV. 
REQUISITES  OF  THE  ACTION. 

g  10S3.  What  plaintiff  must  show  to  sustain  action. 

g  1084.  Commencement  of  prosecution. 

§  1085.  Termination  of  prosecution. 

§  108G.  Probable  cause  —  What  is  — ^V^lat  is  not. 

§  1087.  Good  faith  and  honest  belief  immaterial. 

§  1088.  Want  of  jurisdiction  of  court  immaterial. 

§  10S9.  Guilt  or  innocence  irrelevant. 

§  1090.  Sufficiency  of  charge  irrelevant. 

§  ii)l)l.  Personal  knowledge  of  prosecutor  unnecessary. 

§  1092.  Subsequently  discovered  facts  irrulcveut. 

§  1093.  The  judicial  proceedings  —  When  evidence  of  probable  cause. 

§  1094.  The  judicial  proceedings  —  When  evidence  of  want  of  nrobable  cause. 

§  109'.  Evidence  of  character  and  reputation  of  plaintiflf. 

§  109(5.  Advice  of  counsel  as  a  defense. 

§  1097.  Malice  also  essential. 

§  1098.  Evidence  to  show  malice. 

§  1083.  What  Plaintiff  must  Show  to  Sustain  Action. 
—  It  is  said  by  the  supreme  court  of  the  United  States 
in  Wheeler  \.  Nesbitt,^  that  when  tlie  general  issue  is 
pleaded  to  in  an  action  of  mi.  ious  prosecution,  the  ])lain- 
tifr  must  prove:  1.  The  fact  of  the  prosecution;  2.  That 
the  defendant  was  the  prosecutor  or  instigator;  3.  That  it 
terminated  in  the  plaintiff's  favor;  4.  That  the  charge  was 
unfounded,  and  made  without  reasonablo  or  probable 
cause;  5.  That  the  defendant  in  making  it  was  actuated 
by  malice. 

§  1084.  Commencement  of  Prosecution. —  The  plaintiff 
must  prove  that  a  prosecution  was  commenced  against 
liiin."  The  action  is  commenced  where  the  warrant  was 
sued  out,  although  not  placed  in  an  officer's  hands  or  fur- 
ther proceeded  with.'*  So  it  is  not  essential  that  an  in- 
dictment shall  have  been  preferred  on  the  charge.*     The 

'  '2i  How.  544.  ♦  Shock   v.    McChesney,   4  Yeates, 

2  Wlueler  v.  Nesbitt,  24 How.  544.      507;  2  Am.  Dec.  415. 
^  llulmea  v.  Johnson,  Busb.  44. 


^:¥; 


§  10S5 


MALICIOUS    rnOSECUTION. 


1860 


filing  of  the  affidavit  in  a  bastardy  action  is  a  beginning 
of  a  prosecution,  though  the  proceedings  are  dismissed 
without  any  arrest.'  But  an  information  before  a  magis- 
trate docs  not  constitute  a  commencement  of  a  prosecu- 
tion.^ A  copy  of  the  record  of  proceedings  before  the 
magistrate  or  other  officer  is  the  proper  mode  of  provin^^ 
the  essential  fact  of  the  institution  of  the  prosecution;* 

Illustrations.  —  Defendant  had  the  warrant  read  to  him, 
was  told  by  the  constai)lo  that  he  was  under  arrest,  went  alone 
to  a  magistrate's  olliee  f(.)r  trial,  submitted  himself  to  the  magi.s- 
trate,  procured  an  adjournment,  and  gave  the  required  bom^ 
7/(7'/,  in  an  action  for  malicious  prosecution,  that  there  wat- 
suflicieiit  arrest:  Malnnc  v.  Huston,  17  Neb.  107. 


§  1085.  Termination  of  Prosecution.  —  The  plaintiff 
must  show  that  the  prosecution  or  suit  in  which  he  was 
prosecuted,  or  of  wliicli  he  complains,  has  terminated;  for 
it  would  be  absurd  to  allow  one  to  recover  who  in  the  end 
might  be  convicted  of  the  offense  charged.'*  The  right  of 
action  accrues  "  whenever  the  particular  prosecution  bo 
disposed  of  in  such  a  manner  that  it  cannot  be  revived; 
and  the  prosecutor,  if  he  proceeds  further,  will  be  [)ut  to 
a  new  one";'*  and  he  must  show  that  it  terminated  in  his 
favor.  If  it  was  a  civil  suit,  he  must  show  that  a  judg- 
ment was  rendered  for  him;"  if  a  criminal  prosecution, 
ho  must  ordinarily  show  a  final  acquittal."     Where  there 

Drahoble,     LS    Xel). 


'  Cotfey  V.  Myers,  84  Iiul.  105. 

'  Hcyward  v.  Cuthbert,  4  -McCortl, 
.354. 

■■'  Obnsteacl  r.  rartriiliie,  1()  Gray, 
:\8\ ;  ( 'oopcr  V.  Utterbacli^  .S7  ^bl.  2S'2. 

*  Wliecler  v.  Ncsbitt,  •J4  How.  544; 
Haiuilburgli  i\  tSliepanl,  1  li'  ^biss.  oO; 
Oilk's[)iu  V.  Hudson,  ]  1  Kaii.K.!.'?;  Trow- 
ell  i:  Snow,  ."Jl  In<b  '2l'r,  Hall  v. 
Fislier,  '20  Barb.  441 ;  Smith  r.  Sliacklc- 
fonl,  1  Nov.  &  M.  .30;  Lawlor  r.  Lov}', 
:}3  La.  Aiiti.  220.  And  the  complaint 
should  allege  this:  .Johnson  ?•.  Fincli, 
•J3  N.  V,'.  205;  Rotchschild  c.  Moyer, 
IS  111.  A  pp.  284.  An  action  is  prema- 
turely brought  while  the  prosecution 
is  still  pending  before  the  grand  jury; 
Lowe  <:  \Vartuiau,  47  X.  J.  L.  413. 


*  Casebeer    v. 
405. 

'■■  O'Brien  v.  Barry,  lOG  Mass.  .300; 
8  Am.  Rep.  320.  The  termination  uf 
the  former  action  need  not  l)e  as-erruil 
and  proved  in  an  action  for  mali- 
ciously and  without  probable  cause 
procuring  and  employing  an  attach- 
nicnt  as  auxiliary  to  a  civil  action: 
Fortman  r.  llottier,  8  Ohio  St.  ,548;  72 
Am.  Dec.  000. 

'  Bacon  r.Townc,  4  Cush.  217;  BoyJ 
r.  Cross,  35  Md  194;  Kirkpatrick  r. 
Kirkpatriek,  30  Pa.  St.  288;  Williams 
r.Woodhouso,  3  Dev.  257;  Mooney  .'. 
Kennett,  10  Mo.  551;  01  Am.  Dee. 
570;  (lowell  v.  Suow,  31  Ind.  215; 
Wiiiu  V.  Peckhain,  42  Wis.  493 


ISGl 


REQUISITES    OP   THE    ACTION. 


10S5 


was  a  conviction,  the  action  will  not  lie/  unless  the  judg- 
ment is  shown  to  have  been  obtained  by  fraud."  It  is 
sufficient  to  show  a  discharge  by  the  magistrate  on  the 
preliminary  examination;*  or  by  the  grand  jury  finding 
no  bill;''  or  that  the  indictment  has  been  quashed,  and 
the  accused  discharged  by  the  judgment  of  the  court;'  or 
that  the  prosecution  was  abandoned;^  or  the  release  of 
the  party  on  giving  surety  to  keep  the  peace;'  or  that  the 
accused,  having  been  held  to  bail  to  the  next  term  of 
court,  was  discharged  by  the  public  prosecutor  without 
action  by  the  grand  jury;*  or  that  the  prosecution  was 
dismissed  before  trial;"  or  that  the  indictment  was 
quashed,  and  the  defendant  discharged  by  the  court;  ^^ 
r  'lat  the  defendant  was  discharged  before  trial  on 
/(rtiA  ■  y^orpus.^^  Where  the  suit  is  a  civil  action  wholly 
under  the  control  of  the  plaintiff,  a  discharge  of  it  by 
'•:m  without  any  verdict  or  judgment  is  a  sufficient  ter- 


'  Miller  i  Deere,  2  Abb.  Tr.  1 ;  (rriffis 
,•.  8ollars,  i.  Dev.  &  B.  492;  S'  Am. 
Dec.  422;  Cioon  v.  Gerry,  13  Gray, 
201;  Muuroe  v.  Maples,  1  Root,  554; 
Hibbiug  V.  Hyde,  50  Cal.  200;  Tur- 
ner /'.  Diunegar,  20  Huu,  405;  Sev- 
craiK'j  r.  Judkins,  73  Me.  370. 

'Burt  V.  Place,  4  Wend.  591;  Wit- 
haiu  r.  (rowen,  14  Me.  302;  raysou  v. 
(iiswell,  22  Me.  220.  Contra,  Sever- 
ance r.  Judkins,  73  Me.  370.  Convic- 
tion of  the  party  by  a  jury,  tbougb  the 
verdict  was  obtained  by  false  testi- 
mony and  afterwards  set  aside  for 
newly  discovered  evidence,  and  a  ver- 
dict I  if  not  guilty  returned,  i;-,  con- 
clusive^ evidence  c)f  prol)a)jlo  caaso  in 
a  subsequent  action  for  malicious 
luoseeution:  Parker  v.  Huntington,  7 
(iray,  SO;  00  Am.  Dec.  455. 

^  L'ardival  r.  Smith,  109  Mass.  158; 
I'J  Am.  Rc]).  082;  Swemgard  »".  Davis, 
:!,'{  Minn.  308;  Sayles  ?'.  Briggs,  4  Met. 
4'.M;  Leon  r.  Babcock,  2  Johns.  203; 
Diiggs  /'.  Burton,  44  Vt.  124.  Even 
it  tlu^  magistrate  has  only  power  to 
Imul  I  iver  or  discharge :  Movie  v.  Drake, 
Ml  Mass.  238.  And  although  after- 
rtiiids  an  indictment  is  found  for  the 
HMw.  matter:  CostcUo  c.  Knight,  4 
Mackcy,  05.     The  docket  of  the  jua- 


tice  is  admissible  to  show  the  plain- 
tiff's discharge,  even  though  it  wag 
not  written  up  at  the  time  it  sliould 
have  l)een.  The  plaintiff  .should  not  bo 
prejudiced  by  the  justice's  neglect  of 
duty:    Ames  r.  Snider,  09  111.  370. 

*  Morgan  r.  Hughes,  2  Term  Rep. 
225;  Freeman  r.  Arkell,  2  Barn.  >.S:  0. 
494;  }^acon  r.  Waters,  2  Allen,  400; 
Horner  ?•.  Lawton,  18  Fla.  328.  Even 
without  a  formal  order  of  discharge 
by  the  court:  Potter  ?".  Casterline,  41 
N.  J.  L.  22 

'•'  Hays  V.  Blizzard,  .30  Ind.  457. 

®  Brown  v.  Randall,  30  Conn.  .50;  4: 
Am,  Rep.  35;  Kullcy  r.  Sage,  12  Kan 
109;    Leever   v.  Harnill,  57  luil.  42^'; 
Clegg  r.  Watcn-bury,  88  Iml.  21. 

'  Hyile  r.  '  reuch,  02  Md.  577. 

**  Schooucvcr  /•.  Myers,  28  111.  308. 

9  Kelley  r.  Sage,  12  Kan.  109;  Fay 
jj.O'Neill,  .30  X.  Y.  11;  Leever  r.  Ham- 
ill,  57  hid.  423;  McWilliams  r.  Ibj- 
ban,  42  Md.  50;  (iilljcnt  r.  Ennn'  ns, 
42  111.  143;  89  Am.  Dec.  412. 

"  Hays  r.  Blizzard,  30  Ind.  457. 

"  Walker  r.  Martin,  43  111.  508; 
Swartwout  v.  Dickelman,  12  11uu,  ;i58; 
Zebley  c.  Storey,  117  Pa.  St.  478.  Con- 
tra, Merrimau  c.  Morgan.  7  Or.  08 


§  1085 


MALICIOUS    PROSECUTION. 


18G2 


mlnatioii  of  the  suit.^  If  the  proceeding  is  ex  parte  to 
hold  to  bail,  and  the  accused  party  has  no  opportunity  to 
disprove  the  case  made  against  him,  he  may  maintain 
the  suit,  notwithstanding  he  was  required  to  give  bail.- 
If  the  defendant  was  not  served  with  process  in  the  at- 
tachment suit,  it  is  not  necessary  for  him  to  show  that  it 
terminated  in  his  favor;  ^  and  it  is  not  essential  to  the 
maintenance  of  an  action  for  the  abuse  of  legal  process 
by  maliciously  suing  out  an  attachment  that  the  attach- 
ment has  been  vacated,  even  though  this  might  have 
been  done  on  motion.* 

But  it  is  not  onough  to  show  a  discharge  on  account  of 
a  settlement  between  the  parties;^  nor  an  entry  of  a  nolle 
prosequi  in  a  criminal  case;"  nor  the  striking  the  case  from 


1  Cardival  .•.  Smith,  109  Mass.  158; 
12  Am.  Rep.  OS'?.;  citing  Nicholson 
V.  C'oghill,  4  I'.r.rn.  &  C.  21;  Wat- 
kins  )'.  Lee,  5  iNJces.  &  W.  270;  Ross 
V.  Norniaii,  5  Ex.  359;  Bickutl)  r. 
Dorion.liJ  Pick.  478;  Sav'agoy. Brewer, 
IG  Pick.  4'hi;  2S  Am.  Dec.  255. 

*  Stewart  v.  Gromett,  7  Com.  B., 
N.  S.,  iOl. 

3  Bump  V.  Betts,  19  Weud.  421. 

*  Rossiter  v.  Minneaota  etc.  Pa^.er 
Co.,  37  Minn.  29(3. 

*  Mayer  v.  Walter,  64  Pa.  St.  283; 
Hauiiiljurgh  v.  Shepard,  119  Mass. 
30;  Emery  v.  Ginnan,  24  111.  App. 
65.  In  McCormick  r.  Sis.son,  7  Cow. 
715,  S.  oljtained  a  warrant  from  a  jus- 
tice against  M.  on  a  ciiargo  of  theft, 
and  ho  was  lij-ought  before  the  ju^itice 
for  examination,  but  before  it  was  lin- 
ished  the  parties  stated  that  tiiey  had 
settled  all  matters  of  difficulty  Ijc- 
tween  them,  and  on  that  account  he 
proceeded  no  further.  It  was  held 
that  no  action  would  lie.  "  I  think," 
said  Woddworth,  J.,  "the  objection 
taken  that  there  was  no  acquittal 
ii  fatal.  The  justice  did  not  decide 
whether  there  were  grounds  for  the 
complaint  or  not.  It  is  essential  that 
the  plaiutifiF  prove  ho  has  been  acquit- 
ted. The  discharge  must  be  in  conse- 
quence of  tlie  ac(piittHl.  The  action 
cannot  be  sustained  unless  the  )jro- 
cocdiiigs  are  at  au  end  by  reasou  of  au 


acquittal.  In  this  case  the  proceed- 
ings ended  in  consequence  of  a  settle- 
ment. The  justice  heard  a  part  of 
the  testimony  only,  and  formed  no 
opinion  on  the  subject." 

"  Cardival  i;.  Smith,  109  Mass.  158; 
12  Am.  Rep.  682;  Brown  v.  Lakemau, 
12  Cush.  482;  Bacon  v.  Towne,  4  Cush. 
217;  Parker  v.  Farley,  10  Cush.  27'J; 
Heyward  v.  Cuthbert,  4  MeCorJ, 
355;  Graves  v.  Dawson,  130  Mass.  7S; 
3&  Am.  Rep.  429;  Langford  v.  R.  It. 
Co.,  144  Mass.  431.  Contra,  Brown  r. 
Randall,  36  Conn.  56;  4  Am.  Hop.  34; 
Hays  V.  Blizzard,  30  Ind.  457;  CIi.ip- 
man  i\  Woods,  6  Blackf.  504;  Stanton 
V.  Hart,  27  Mich.  539;  Woodwortli  r. 
Mills,  61  Wis.  44;  50  Am.  Rep.  135; 
Hatch  ('.  Cohen,  84  N.  C.  602;  37  Am. 
Rep.  630;  Yocum  v.  Polly,  1  B.  Moa. 
358;  36  An).  Dec.  583;  Moultou  r. 
Beecher,  8  Hun,  100;  Apgar  v.  Wool- 
ston,  43  N.  J.  L.  57;  Graves  r.  Daw- 
son, 133  Mass.  419;  Kennedys.  Ilollii- 
day,  25  Mo.  App.  503.  In  Indiana 
it  has  been  held  that  if  oue  in- 
stitutes a  criminal  proceeding,  and  is 
the  prosecuting  witness  therein,  Imt 
fails  to  apjjcar  after  several  adiouiii- 
ments,  and  the  accused,  for  that  rea- 
son, is  suffered  to  go  at  liberty,  tlii^ 
is  sufficient  termination  of  tiie  prose- 
cution, even  though  there  bo  ncj  receitl 
of  the  discharge:  Leever  v.  HamiU,  57 
lud.  423. 


18G2 

parte  to 
tunity  to 
maintain 
ive  bail." 
Q  the  at- 
»\v  that  it 
al  to  the 
,1  process 
e  attach- 
ght  have 

.ccount  of 

of  a  nolh 

case  from 

the  proceed- 

;o  of  a  settle- 
I'll  a  ^  -' 


„   part  of 
I    formed 


no 


tn. 


)9  Mass.  158; 
I  V.  Laki'iiiau, 
awiie,  4 Cush. 
.0  Cush.  'JT'J; 
4    McCoiJ, 
130  Mass.  7S; 
ford  r.  11.  K. 
tra.  Brown  / . 
Am.  Rop.  154; 
457;  C'hap- 
504;  Stiiutou 
Vooihvorth  r. 
Rep.  i;i5; 
GO'2;  :!7  Am. 
.y,  1  B.  -Moa. 
Moultou    '■• 
gar  r.  Wo<il- 
•avca  r.  I>;iw- 
ledy  I'.  lltilUi- 
In   Induuui 
if    one    ill- 
eding,  ami  is 
therein,  Imt 
iral   adjourii- 
for  that  rca- 
lihnrty,  tliin 
of  the  pn ISO- 
bo  no  rcciii'l 
V.  Hamill,  J7 


1SG3 


REQUISITES   OF    THE    ACTION. 


1085 


the  (locket  on  motion  of  the  district  attorney  with  leave  to 
reinstate  it;'  nor  that  the  defendant  was  discharged  be- 
cause the  offense  was  misnamed  in  the  papers,  or  because 
of  formal  defects.'^  The  dismissal  of  a  prosecution  before 
u  justice,  with  the  intention  of  instituting  another  in  the 
district  court,  is  not  sufficient.  The  district  court  prose- 
cution must  have  ended  first.^  But  if  one  compounds 
under  protest  to  procure  his  discharge,  this  does  not  after- 
ward estop  him  from  showing  the  groundlessness  and 
malice  of  the  proceeding.'*  The  plaintiff  need  not  prove 
the  exact  day  of  his  acquittal  as  laid  in  his  declaration, 
provided  it  be  shown  to  have  been  before  the  action 
was  brought.^ 

Illustrations.  —  The  declaration  alleged  that  defendant  ma- 
liciously, and  without  probable  cause,  procured  the  arrest  and 
holding  to  bail  of  plaintiff,  on  a  writ  in  a  civil  action,  return- 
able at  a  certain  time,  at  which  the  plaintiff  appeared,  but  de- 
fendant did  not,  nor  was  said  writ  ever  returned.  Denuirrer  on 
the  ground  that  it  appeared  that  the  auit  alleged  to  l^o  mali- 
cious was  not  determined  in  favor  of  the  defendant  therein  by 
a  judgment  of  the  court.  Held,  that  the  declaration  was  good: 
Cardlval  v.  Smith,  109  JNIass.  158;  1^  Am.  Ilep.  GS2.  A  sues 
B  for  maliciously  euing  out  an  attachment.  An  appeal  of 
the  attachment  case  is  pending  and  undisposed  of.  IlehJ.  that 
the  action  is  premature:  Reynolds  v.  De  Geer,  13  111.  App.  113. 
M.  was  arrested  on  a  warrant  for  larceny,  brought  l)eforo  a  jus- 
tice, and  committed  to  jail  in  default  of  bail  for  his  appearance 
at  the  next  term  of  the  recorder's  court.  Before  that  time  he 
was  discharged  from  imprisonment  on  habeas  corpus,  and  im- 
mediately brought  an  action  for  malicious  prosecution.  Held, 
tliat  the  action  was  premature,  as  the  prosecut.ion  had  not 
Gilded:  Walhrr  v.  Martin,  43  111.  508.  A  husband  and  wife  ''om- 
menced  an  action  for  the  malicious  replevin  of  their  liousehold 
furniture,  alleging  that  the  replevin  suit  was  commenced  witli 
intent  to  injure  the  wife,  and  actually  resulted  in  her  injury  by 
tlio  removal  of  the  furniture.  It  appeared  that  the  replevin 
suit  was  still  pending.  Held,  that  the  action  could  not  be  main- 
tained: (f  linen  v.  Barry,  106  Mass.  300;  8  Am.  Rep.  329.  The 
defendant  had  caused  to  be  instituted  before  the  police  judge  of 

*  Morton   i>.  Youug,  55  Me.  '24;  92 
Am.  Dec.  5G5. 

■'  Muwry   V.   Miller,    3   Lei,;!!,  501; 


'  IJldock  V.  Randall,  70  111.  224. 
2  ScMrs  V.  Hatiiaway,  12  Cal.  277. 


5G7. 


'  fSciiippel    V.     Norton,     38     Kan. 


24  Am.  Dec.  080. 


§  1086 


MALICIOUS    PROSECUTION. 


1SC4 


Salom  a  complaint  against  the  plaintiff,  charging  her  with  the 
crime  of  larceny;  she  was  adjudged  to  be  probably  guilty,  and 
ordered  to  recogi/ize  with  surety  to  answer  further  to  the  com- 
plaint at  the  October  term,  1871,  of  the  superior  court;  she 
thereupon  entered  into  a  recognizance  to  appear  at  the  ()ctol)er 
term  of  the  superior  court,  and  at  any  subsequent  term  or  terms 
until  the  final  sentence,  decree,  or  order  of  the  superior  court, 
and  to  abide  such  final  sentenci;,  decree,  or  order.  To  prove 
that  this  prosecution  was  at  an  end.  the  plaintiff  introduced  the 
records  of  the  superior  court  to  sliow  that  the  grand  jury  had 
returned  "  no  bill  "  in  the  olaintitf's  case,  but  the  record  did  not 
show  that  the  plaintiff  \  .  thereupon  discharged  by  the  court. 
Ilchl,  that  tlie  p?-osecution  had  not  terminated,  and  that  the 
plaintiff  could  not  maintain  the  action:  Knotty,  Sargent,  125 
Mass.  95. 

§  1086.    Probable  Cause— What  is — What  is  not.— 

Probable  cause  is  defined  as  "  sucli  a  state  of  facts  as 
■would  lead  a  man  of  ordinary  caution  and  prudence  to 
believe  and  onlortainan  honest  and  strong  suspicion  that 
the  man  is  guilty";'  "a  reasonable  ground  of  sus[)icion, 
supported  l)y  circumstances  tuilliciently  strong  in  them- 
selves to  warrant  a  cautious  man  in  the  belief  that  the 
person  accused  is  guilty  of  the  offense  with  which  he  is 
charged."  -  That  is  to  say,  to  constitute  probable  cause 
for  the  prosecution,  the  facts  and  circumstances  upon 
which  the  defendant  acted  must  bo  such  as  under  the  cir- 
cumstances would  induce  men  of  ordinary  prudence  to  act 
as  he  did.''     A  ilefinition  of  probable  cause  as  "knowledge 

;l1)1o  (_'ause,sucli  aswould  operate  on  thu 
iniiiil  of  a  reasonable  iiia;i'":  Tiiidal, 
('.  .i.,  iu  Broad  '•.  Ham,  ."i  l.iuL,'.  N.  C. 
72"J.  "That  ippareut  stitoof  facts 
ffiiind  to  exisi  njiou  rea  ioiiahle  in- 
quii'y,  that  ts,  snoh  hi-juiry  aa  the 
given  oa-se  rendered  eoaveuieiit  and 
pr('[)er,  which  would  indueo  a  leasoii- 
alily  iiiteiligeiit  aud  prudent  man  te 
believe  the  accused  privson  had  com- 
nutted,  iu  a  crimiual  ease,  the  crime 
oiiargeil,  and  iu  a  civil  ease,  that  a 
cause  of  acnou  cxiste  1  ':  Perkins,  J., 
in  Lacy  v.  Mitchell,  '2',\  Ind.  (»7. 

'  Drigas  r  Burton,  4t  Vt.  1 14;  Cole  r. 
Curtis.  KJMiun.  182;  Delegal  i\  Hi^il- 
ley,  3  Biug.  N.  C.  950;  Bell  v.  Pearcy, 


*  Shaw,  C.  J.,  iu  Bacon  v.  Towne,  4 
Cush.  LM7. 

■^  ^Ir.  .Justice  Washington,  inMunna 
V.  Dupout,  li  Waah.  ('.  C.  31.  These 
detinitifiiis  havf  been  often  cited  aud 
approved:  See  Boyd  i\  Cross,  3o  Md. 
197;  Stansbcrry  /•  Fogle,  37  Mo.  4G9; 
Foshay  r.  Feri;>i-.)n,  2  Denio,  617; 
Mc(U.ru  >:  Br:.  ;e.tt,  33  Me.  331; 
Ames  r.  Siiider,  111.  370;  Landa  v. 
0])eri,  4')  Tex.  r.:]\)-  Hall  v.  Suydam, 
(JBarl>.  83;  (Jim.  i  ,•.  L  dand,  1  Me.  135; 
10  Am.  Dec.  48:  I'.i.  kiieUl  i>.  Braveboy, 
2  Me  Mull,  27w;  3  J  Am.  Dec.  123. 
"There  must  be  a  reasonable  cause, 
such  a-;  w  luld  operate  on  tiaie  mind  of 
a  iLscreec  mau;  there  must  tie  a  prob- 


1804 


18G5 


REQUISITES    OF    THE    ACTION. 


§  1086 


'ith  tho 
ty,  h'hI 
le  com- 
irt;  she 
October 
)r  terins 
r  court, 

0  prove 
iced  the 
iry  had 
.did  not 
e  court, 
hat  the 
lent,  125 

\  not. — 

facts  as 

CMICO    to 

on  that 
spicion, 

1  tliom- 
hat  tho 
•h  ho  is 
0  cause 
s  upon 
tho  cir- 
c  to  act 

wlcdgo 

rato  oil  the 

Tiiuliil, 

111-.  N.  C. 

,(i  of  facts 

loiiablo  iu- 

vy   as    tho 

iiiuiit  ami 

a  reason- 

it  mail  to 

had  coiu- 

tho  crime 

jiso,  that  a 

rkins,  -f., 

C.T. 
14;C'oUm'. 

1  ('.  High- 
V.  Pcarcy, 


of  circumstances  of  tho  guilt  of  tho  plaintiff  sufTiciont  to 
satisfy  a  reasonable  mind  that  i)laintilf  was  guilty,  and 
that  his  guilt  could  reasonably  bo  expected  to  bo  estab- 
lished by  a  criminal  prosecution  honestly  and  fairly  con- 
ducted," is  erroneous,  because  it  implies  that  no  one  can 
prosecute  but  upon  known  competent  evidence  sullicient 
to  sccui'o  a  conviction.*  The  expressions  "  reasonable 
cause  "  and  "  probable  cause  "  have  essentially  tho  same 
moaning.^  The  prosecutor  is  not  required  to  act  with  tho 
same  impartiality  and  absence  of  prejudice  in  drawing 
his  conclusions  as  a  disinterested  person  would.^  IIo 
must  simply  act  as  a  reasonable  and  prudent  man  would 
have  acted  in  a  similar  position.'* 

Tho  following  have  been  lield  to  show  probable  cause: 
Tho  fact  of  a  homicide  having  been  committed,  or  a  kill- 
ing with  a  deadly  weapon  even  in  self-defense;'  acting  on 
evidence  sufficient  to  raise  a  reasonable  sus[)icion;"  that 
one  was  arrested,  committed,  and  indicted  for  a  crime; ^ 
probable  cuusu  for  believing  plaintiif  to  have  boon  guilty 
of  felony  as  accessary  before  the  fact.^     Want  of  probable 


5  Ired.  83;  Ji;hn3on  v.  Chombera,  10 
Iicl.  2S7;  Barron  v.  Mason,  31  Vt. 
ISlt;  Carl  r.  Ayors,  iJ3  N.  Y.  11; 
.Speii^'lor  r.  Davy,  15  Gratt.  381; 
BaiiLV /'.  (.'lav,  8  Kan.  581;  Stone  i\ 
Stevens.  I'J  Conn.  219;  30  Am.  Dec. 
Gil;  (ialloway  v.  Stewart,  49  Ind. 
loii;  I'.l  Am.  Hep.  077;  Skidmorc  i: 
Brieke!',  77  111.  104;  Jacks  v.  Stimp- 
soii,  l.'iill.  71;  Lawrence/".  Laniiing, 
4I;iil.  r.U;  Jos.sL'lya  V.  McAIli.ster,  t'j 
Jlidi.  45;  IJoyd  r.  Cross,  35  Md.  194; 
Shaul  r.  Brown,  28  Iowa,  37;  4  Ain. 
Ru[).  151;  Cee  v.  Patterson,  03  Me. 
40;  Uaulstou  /•.  Jackson,  1  Sneed,  128; 
MiiUTV  /••  Whipple,  8  li.  I.  300;  An- 
gclo,'.Faiil,85  lU.lGO;  Crims?-.Sellar,s, 
•J  Dov.  .1- 15.492;  31  Am.  Dee.  422;  Coek- 
liiM  /•.  Bravuboy,  2  McMnll.  270;  :i9 
Am.  Doc.  123;  Casey  r.  Sovatson,  30 
Minn.  510;  Wassermaii  t'.  R.  R.Co.,  28 
Fc.l.Ueii.S  )2;  Knilovitzr.R.K.Co.,  140 
Ma-is.57;>;  Dorondinger  y.Tscheclitelin, 
lliDalv,  34:  StanscTl  ?'.  Cleveland,  04 
Tex.  000;  Meyseuberg  v.  Eugoike,  18 


Mo.  App.  340;  Kriilovitz  v.  R.  R.  Co., 
143  Mass.  228;  Ross  ;•.  Liness,  35  111. 
487;  85  Am.  Dec.  373. 

^  Planters'  Ins.  Co.  r.  Williams,  CO 
Miss.  910. 

■^Staccy?\  Emery,  97  U.  S.  012. 

''Cooley  on  Torts,  183;  citing  Color. 
Cnrtis,  10  Minn.  183;  Carter  y.  Suther- 
land, 52  ]SIicli.  597. 

*  Bourne  i'.  Stout,  02111.  201. 

*  Dietz  V.  Langtit.  O:!  Pa.  St.  239; 
Glaze  V.  Whitley,  5  Or.  101. 

•*  Murray  r.  Lonu',  1  \Vend.  140; 
Burliugame  v.  Burliiiganie,  S  Cow. 
141. 

■  Ricard  v.  R.  R.  Co.,  15  Nev. 
107.  Olio  who  when  cliar;_;L'd  with  a 
crime  voluntarily  waive -i  a  preliminary 
examination  and  entcr.i  into  a  rceog- 
nizauco  to  appear  at  tlio  next  term  of 
court  will  be  taken  to  have  confessed 
that  there  was  probable  cause  for  the 
charge:  Vansicklo  r.  lirown,  08  Mo, 
027. 

^  Spear  i  Hiles,  67  Wis.  301. 


1086 


MALICIOUS   PROSECUTION. 


18G6 


cause  cannot  be  inferred  from  proof  of  malice,  because  a 
person  may  act  with  malice,  and  yet  have  a  justifiable 
reason  for  instituting  a  prosecution,  and  the  offense  itself, 
or  at  least  the  belief  in  its  commission,  is  likely  to  excite 
malice  in  the  injured  person.^  One  cannot  be  held  liable 
for  malicious  prosecution,  if  there  was  probable  cause  for 
the  prosecution  and  arrest  instituted  by  him,  although  he 
was  actuated  by  feelings  of  hatred  and  revenge.^  But  the 
defendant  must  have  honestly  believed  in  the  truth  of 
the  charge  made  by  him.^  The  removal  from  one  state  to 
another  for  the  purpose  of  bringing  a  suit  in  the  United 
States  court  does  not  show  a  want  of  probable  cause  for 
bringing  the  action;  the  plaintiff  has  the  right  to  select 
his  forum.^  A  prosecution  instituted  upon  the  apparently 
truthful  statements  of  a  child  eleven  years  old,  who 
claimed  to  have  seen  the  plaintiff  commit  the  offense  with 
which  ho  was  subsequently  charged,  is  not  without  prob- 
able cause.' 

The  following  have  been  held  to  show  a  want  of  prob- 
able cause,  viz.:  Mere  suspicion  of  guilt  without  any  facts 
to  cause  it,  or  without  sufficient  evidence  to  cause  a  rea- 
sonable  man  to  suspect  guilt;^  knowledge  on  the  prosecu- 
tor's part  that  the  party  claimed  a  right  to  the  property 
for  the  taking  of  which  he  prosecutes  him;^  suspicion 
raised  and  caused  by  the  prosecutor's  own  negligence;^ 


>  Hall  V.  Suydam,  6  Barb.  8.3;  Mur- 
ray V.  Long,  1  '.'v'ond.  140;  Masten  v. 
Dcyo,  2  Weuil.  4i?4;  Ulmer  v.  Lelanil, 

1  Me.  1.3,'3;  10  Am.  Dec.  48;  Jolinston 
V.  Sutton,  1  Term  Hop.  545;  Hr>rn  v. 
Boon,  3  Strol).  'SOT;  Ames  v.  Snider, 
60111.  37(5;  Williams  r.  Taylor,  GBing. 
183;  Travis  v.  Smith,  1  Pa.  St.  234; 
44  Ain.  Dec.  125;  Ciiapmau  w.  Cansey, 
50  111.  512;  Heyne  v.  Blair,  02  N.  Y. 
19;  Foshay  v.  Ferguson,  2  Dcnio,  617; 
Wade  V.  Walden,  23  111.  435;  Kidder 
V.  Parkhurst,  3  Allen,  393;  Cloon  v. 
Gerry,  13  Gray,  201;  Center  v.  Spring, 

2  Clarke,  393;  Skidmore  v.  Bricker,  77 
111.  104;  Krug  v.  Ward,  77  111.  603; 
Caperson  v.  Sproulo,  .39  Mo.  39;  Hali 
V,   Huwkius,  5  Ilumph.  357;   Bell  v. 


Pearcy,  5  Ired.  83;  Yocum  v.  Polly, 
1  B.  Mon.  358;  36  Am.  Dec.  583;  (Want 
V.  Duel,  3  Rob.  (La.)  17;  38  Am.  Die. 
228;  Williams  (-.Van  Meter,  8  Mo.  3.39; 
41  Am.  Dec.  644;  Griffin  v.  Chub,  7 
Tex.  603;  58  Am.  Dec.  85. 

'■*  Leyeuberger  v.  Paul,  12  111.  App. 
635. 

3  Spear  v.  Ililes,  67  Wis.  3,50. 

*  Woods  V.  Fiuncll,  13  Bush,  628. 

^  Dwain  v.  Descalso,  66  Cal.  415. 

«  Carl  V.  Ayers,  53  N.  Y.  14;  Busst 
V.  Gibbons,  30  L.  J.  Ex.  75. 

7  Hall  V.  Suydam,  6  Barb.  83;  Wea- 
ver  V.  Towuaeud,  14  Wend.  192; 
Brooks  V.  Warwick,  2  Stark.  389. 

»  Lacy  V.  Mitchell,  23  Ind.  07;  Mcr- 
riam  v.  Mitchell,  13  Me.  439;  29  Am. 


18GG 


18G7 


REQUISITES   OF   THE   ACTION. 


§  1086 


nalico,  because  a 
avo  a  justifiable 
the  oirense  itself, 
s  likely  to  excite 
lot  be  held  liable 
robable  cause  for 
him,  although  lie 
■evenge.'^  But  the 
in  the  truth  of 
from  one  state  to 
;uit  in  the  United 
robable  cause  for 
le  right  to  select 
on  the  apparently 
1  years  old,  who 
it  the  offense  with 
not  without  prob- 

w  a  want  of  prob- 

without  any  facts 

ice  to  cause  a  rca- 

ge  on  the  prosecu- 

to  the  property 

him;'    suspicion 

own  negligence;"* 

,fl.  83;  Yocum  v.  Polly, 
36  Am.  Dec.  583;  (Want 
..  (La.)  17;  38  Am.  l>c. 
Vau  Meter,  8  Mo.  3;!0; 

044;    Griffin  v.  Chub,  7 

Am.  Dec.  85. 

or  V.  Paul,  12  111.  App. 

riles,  G7  Wis.  3.50. 
Fimicll,  13  Bush,  G2S. 
Descalso,  C6  ("al.  415. 
■era,  53  N.  Y.  14;  Busst 
)  L.  J.  Ex.  75.     . 
vdam,  G  Barb.  83;  Wca- 
laeml,    14    Wend.    I'JiJ; 
rwick,  2  Stark.  389. 
^itchell,  23  Ind.  G7;  Mer- 
ell,  13  Me.  439;  29  Am. 


the  prosecution  of  a  suit  which  has  no  foundation  except 
in  the  assumption  that  the  judgment  of  the  liighest  state 
court  is  not  law.^  As  mere  conversion  of  property  is  not 
larceny,  proof  of  facts  amounting  only  to  couver.sion  can- 
not establish  probable  cause  for  a  charge  of  larceny.'^ 

Illustrations.  —  Pkobaule  Cause  Shown.  —  A  street-car 
driver  run  his  car  over  a  young  child,  and  killed  hiui.  His 
uncle  had  him  arrested  for  killing  the  child;  he  was  bound 
over,  but  the  grand  jury  ignored  the  bill.  He  thereupon  brought 
an  action  for  malicious  prosecution.  Held,  that  the  uncle  acted 
with  probable  cause:  Dictz  v.  Lanr/fit,  G3  Pa.  St.  23'J.  W.  was 
a  marine  stores  dealer,  who  bought  old  sacks  to  be  used  in  the 
uianufacture  of  paper.  T.,  a  miller,  who  lost  many  sacks  every 
year  from  his  customers  not  returning  them,  and  who  never 
sold  any  of  his  old  sacks,  or  gave  any  one  authority  to  do  so, 
saw  a  number  of  sacks  covered  with  a  tarpaulin  lying  on  a 
wharf  near  a  vessel.  Seeing  his  mark  on  one,  he  cut  it  open, 
and  found  that  it  contained  pieces  of  sacks,  some  new,  some 
old.  lie  removed  the  tarpaulin,  and  saw  some  sacks  on  which 
was  his  mark;  on  others  it  was  cutaway.  Being  tohl  that  they 
were  about  to  be  shipped  by  W.  for  the  manufacture  of  paper,  ho 
laid  an  information  before  a  magistrate  that  lie  had  reason  to 
soppect  that  some  sacks,  his  property,  Had  been  stolon,  and  were 
then  in  the  possession  of  W.  Under  tliis  a  search-warrant  was 
issued,  and  W.  was  arrested  and  taken  before  a  magistrate,  who 
dismissed  the  charge.  W.  sued  T.  for  malicious  ])rosecution. 
Held,  that  T.  acted  with  probable  cause:  Wyatt  v.  White,  5  Hurl. 
&  N.  o71;  29  L.  J.  Eq.  193.  Defendant's  hogs  were  stolen  from 
him,  and  he  learned  facts  which  led  him  to  believe  that  plain- 
tiff was  the  thief,  which  facts  he  laid  before  the  prosecuting 
attorney,  who  advised  him  not  to  prosecute,  but  upon  finding 
another  witness  who  communicated  to  him  facts  which  he  pro- 
fessed to  bo  willing  to  testify  to,  and  upon  going  witli  him  be- 
fore the  prosecuting  attorney,  the  latter  advised  a  prosecution, 
whicli,  however,  resulted  in  an  acquittal,  the  witness  failing  to 
testify  to  anything  material.  Held,  there  was  probable  cause 
for  In'inging  the  action:  Anderson  v.  FrinJc,  85  111.  1.'35.  De- 
fendant prosecuted  plaintiff  for  perjury,  committed  in  an  action 
for  rent  brought  by  defendant  against  plaintilFs  father.  Plain- 
tiff was  acquitted,  and  sued  defendant  for  malicious  prosecution. 
The  jury  were  directed  if  plaintiff  had  spoken  the  truth,  but 

Dec.  514.     Tlic  prosecution  of  an  in-  cause:    Merriam  ?-.  Mitchell,    '^  Me. 

iioccnt  person  for  the  abstraction  of  a  439;  29  Am.  Dec.  514. 

pat'kiigo  from  the  mails,  which  pacliage  'Slaughter  House  etc.  Co.  v.  Live 

luul  been  overlooked  through  careless-  Stock  etc.  Co.,  37  La.  Ann.  874. 

uess  iu  the  search,  is  without  probable  ^  Turner  v.  O'Brien,  5  Neb.  542. 


"vm 


§  lOSG 


MALICIOUS    PROSECUTION. 


18G8 


tlio  (IcfoDdatit  liad  a  vory  trcacliorous  memory,  iind  wont  on 
with  tlu!  priiscinition  undur  i\\o  iiuproHsion  tluit  ilu!  plaiiitifT 
had  coiiiiiiittrd  perjury,  yut  it'  tliat  was  an  honont  impression, 
till'  up.-Iiol  (if  u  I'allacious  nicMuory,  and  acting  upon  it,  and  ho 
lioncstly  liL'ii(.'V(;(l  tluit  tlic  jjlaintifT  liad  sworn  falsivly,  tliey 
would  not  lio  justified  in  finding  that  the  defendant  liad  ma- 
liciously and  witliout  reasonalilf  and  probable  cause  proscculcd 
tlie  plaint iiV.  Jfchi  correct:  JlicL's  v.  Fnulkncr,  4G  L.  T.,  N.  S., 
127;  L.  li.  S  (2.  li.  Div.  1G7.  1!.  sued  I),  for  malicious  prosecu- 
tion. On  the  trial  the  magistrate  before  whom  a  complaint 
against  I!,  had  been  made  was  called  by  B.  and  testified:  '•  1). 
was  at  my  ol'icc  with  C;  the  latter  said  he  had  seen  the  stolei\ 
property  in  jjosscssion  of  B.  My  recollection  is  that  C.  said  they 
were  D.'s  ])i'opcrty.  1  then  recommended  the  complaint  to  bo 
made."  Tiiis  evidence  was  uncontradicted.  Ilcld,  ])robablo 
cause:  llrniarx.  Dunlop,  94  Pa.  St.  o29.  Plaintiff  was  acquitted 
on  a  charge;  of  abortion,  but  the  circumstances  of  the  woman's 
death  wi'n>  such  as  to  evoke  the  gravest  suspicions,  and  to  jus- 
tify an  investigation,  and  the  grand  jury  found  an  indictment. 
Jlrhl,  probable  cause;  Taylor  v.  Rice,  27  Fed.  R(^p.  264.  One 
finding  u  woman  fainting  from  the  eflbcts  of  a  l)ad  wound  on 
the  head,  inllicted  by  A.,  was  informed  by  her  surgeon  that  A. 
ought  to  be  arrested,  but  that  he  could  not  yet  tell  whether  tlio 
wound  was  dangerous,  and,  upon  the  advice  of  an  attorney  at 
law,  swore  out  a  warrant  against  A.  for  assault  with  intent  to 
kill,  and  A.  was  found  guilty  of  assault  and  battery.  Held, 
prol)al)le  cause:  Wafincr  v.  Anlfwrni,  2  111.  App.  147.  Plaintiff 
had  l)eon  for  several  years  ])rior  to  January,  18G!),  engaged  in 
an  extensive  mercantile  business,  and  had  received  large  ship- 
ments of  goods  during  the  latter  part  of  December,  1.SG8,  and 
uj)  to  January  2, 1809,  tlirougli  the  defendants,  as  common  car- 
riers, on  wliich  he  failed  to  pay  the  freight;  and  that  be  had 
received  through  the  hands  of  the  defendants  as  common  car- 
riers packages  containing  very  considerable  sums  of  money, 
bei!ig  the  returns  from  goods  shipi)ed  by  him  to  his  cu'^tomers; 
an<l  that  lie  had  given  checks  to  defendants  for  freight  at  sev- 
eral difieront  times,  all  of  which  were  dishonored  at  the  bank 
on  which  they  were  drawn,  for  the  reason  that  he  had  no  funds 
there  to  pay  them;  and  that,  on  the  second  or  third  day  of 
January,  when  the  defendants  demanded  payment  of  their  1)ills 
for  freight,  he  told  them  he  had  no  money,  and  tliat  since  the 
first  day  of  January  he  had  been  doing  business  as  agent. 
Held,  probable  cause  for  swearing  that  the  plaintiff  had,  within 
two  years,  fraudulently  conveyed  or  assigned  his  property  and 
effects,  so  as  to  hinder  and  delay  his  creditors;  and  to  cause 
an  attachment  on  that  ground  to  be  issued  against  his  prop- 
erty: Barrett  v.  Spaids,  70  111.  408. 


isco 


REQUISITKS    OF   THE    ACTION. 


S  lOSO 


Tl.LUSTRATTONg  (CONTINUED).  —  PhODARLR  CaUSK  NOT  SlIOWN. 

—  A  master  has  a  servant  iirrested  fur  stealing  a  ])i('ee  of  jew- 
clrv.    Tlu'  article  all  the  time  is  iucketl  up  in  the  master's  desk, 
but  ho  has  forgotten  the  fact  that  he  put  it  there.     IlchI,  want 
of    probable  cause:    Mcrrlnm  v.  Mitchell,  l.'J  Me.  4.7J;  2\}   Am. 
Dec.  514.     A  took  a  bank  note  in  the  course  of  his  business 
uiul  paid  it  to  IJ.     Finding  it  forged,  it  was  taken  to  A  by  an 
ins})t'ctor  who  paid  the  amount  of  tho  note,  but  refused  to  give 
it  u})  to  the  inspector,  on  the  ground  that  lie  wished  to  recover 
the   amount   from   the   person  who  had  paid  it  to  him.     The 
inspector  arrested  B  and  prosecuted  him  for  having  in  his  pos- 
c;cs.-;ion  a  bank  note  knowing  it  to  be  forged.     Ifidd,  a  want  of 
probable  cause:     Brooks  v.  Wd.nrlrl:,  2  Stark.  38'.).    A  robl)ery 
had  been   committed  by  A,  who  had  absconded.     J>,  a  fellow- 
workman,  had  been  heard  to  say  that  he  (B)  had  heard  a  few 
liour.s  after  tho  robbery  that  A  had  absconded,  and  that  A  had 
previously  told  him  that  ho  intended  going  to  Australia.     A 
had  likewise  boon  seen  early  in  the  morning  after  the  robbery 
coming  from   a  public  entry  leading  to  tho  back  door  of  B's 
house.     C,  his   master,  hearing  of  these  things,  charged  !>  be- 
fore the  magistrate  with  robbery.     Held,  no  probable  cause  for 
tho  arrest:  Band  v.  Gihhnns,  oO  L.  .J.  Ex.  75.    A  and  a  friend  were 
on  a  steamboat  returning  from  an  excursion.     B  was  also  on 
the  boat  with  his  wife  and  children.      One  of  the  children  had 
tho   whooping-cough,  which  attracted  A's  attention.     lie  told 
his  friend  that  he  know  of  a  valuable  remedy  which  been  used 
successfully  in  his  own  family,  and  said  he  had  a  great  mind  to 
go  over  and  tell  B  about  it.     His  friend  advised  him  to  do  so, 
and  A  went  over  to  where  li  and  his  wife  were  sitting,  and.  not 
being  able  to  approach  them  in  front,  ho  tapped  B  on  the  shoul- 
der.    B  looked  up,  and  A  said  he  wanted  to  speak  to  him;   B 
answered,   '' If  you  have  anything  to  say,  say  it  hero."    This 
attracted  tho  attention  of  other  passengers.  A  said  that  ho  merely 
wished  to  speak  to  him  concerning  his  child's  sickness,  and 
walked  away.     B  replied,  "  You  never  mind   about  my  child; 
you  mind  your  own  business,  and  I  will  mind   mine."     Hoon 
al'torwards    B  pointed    out   A   to  a   detective,  and  preferrcu  a 
charge  against   him   of  attempting   to   steal   a   diamond   pin 
which  he  wore  at  the  time.     Held,  want  of  probable  cause:  Cad 
v.  Aj/crs,  53  N.  Y.  14.     H.  took  a  wagon  from  S.'s  yard  in  the 
daytime,  claiming  it  as  his  own  under  a  bill  of  sale  to  him 
from  his  brother,  C.    S.,  notwithstanding  he  had  been  told  that 
n.  so  claimed  it,  had  him  arrested  for  stealing  it.    Previous  to 
the  complaint,  S.  had  stated  that  he  had  sold  tho  wagon    to  C. 
S.  had  purchased  it  from  one  M.,  and  paid  part  of  the  purchase- 
money;  C.  had  afterwards  paid  the  residue.     C.  exesuted  a  bill 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


128 


■25 
^  1^    12.2 


i: 


|40 


2.0 


I 
llllim 


|l.25  |U    ,,.6 

^ 

6" 

► 

Photographic 

Sciences 

Corporation 


33  WfST  MAIN  STRUT 

WEBSTER,  N.Y.  14SS0 

(716)  •72-4503 


ran 


§1086 


MALICIOUS    PROSECUTION. 


1870 


of  sale  of  it  to  II.,  the  former  having  previously  asked  S.  to  pur- 
chase it  from  liim,  which  S.  refused.  8.  consulted  counsel  before 
making  the  complaint,  and  the  counsel  advised  him  to  prose- 
cute, but  8.  omitted  to  tell  him  of  the  bill  of  sale  from  C.  to  11. 
Held,  no  probable  cause:  Hall  v.  Siiydam,  6  Barb.  83.  In  an 
action  for  malicious  prosecution  upon  a  charge  of  perjury,  it 
appeared  that  the  false  testimony  alleged  as  constituting  per- 
jury was  upon  a  point  not  material  to  the  issue  then  on  trial. 
Held,  want  of  probable  cause:  Plath  v.  Braunsdorff,  40  Wis. 
107.  The  plaintiff  found  the  cows  of  the  defendant  in  his  gar- 
den, and  sent  to  him  to  come  and  pay  the  damage  done  by  the 
cows,  and  to  take  them  away.  The  defendant  thereupon  wont 
to  an  attorney  and  told  him  that  he  had  heard  that  the  plaintiff 
had  his  cows,  and  had  secreted  them,  and  that  he  could  not 
find  them;  and  the  attorney  advised  the  defendant  to  cause  the 
arrest  of  the  plaintiff  for  larceny,  which  was  done.  Held,  want 
of  probable  cause:  Wild  v.  Odcll,  56  Cal.  136.  The  owner  of  a 
be  tt  hich  had  been  taken  from  its  moorings  several  times,  and 
biou;.'^;'  brck,  once  with  a  net  in  it,  and  another  time  with  a  net 
and  scuvi  rubbish  in  it,  caused  plaintiff,  who  took  the  boat,  to 
be  i\>Tesicd  for  grand  larceny  the  third  time  it  was  taken. 
Held  •  antof  probable  cause:  Warner  v.  Wyckoff,  16  N.  Y.  Sup.  Ct. 
178.  During  the  temporary  absence  of  a  tenant  who  was  hold- 
ing over,  C,  his  landlord,  closed  the  entrance  of  the  premises 
(where  the  tenant  lodged),  but  at  night  the  tenant  removed  the 
obstruction  and  entered,  whereupon  C.  returned  and  ordered 
him  to  leave  the  premises,  which  he  refused  to  do,  threatening 
to  kill  C.  if  he  interfered  with  him.  The  same  Saturday  night 
C.  caused  the  arrest  of  the  tenant  upon  an  aflidavit  that  the 
tenant  "did  break  into  the  storehouse  of"  C,  and  "threatened 
to  kill "  C.  if  C.  "  interfered  with  him."  On  Monday  morning 
the  tenant  was  examined  and  discharged  from  jail.  Held,  no 
probable  cause  for  the  arrest:  Chapman  v.  Cawrei/,  50  111.  512. 
Tiie  plaintiff  was  the  lessee  of  certain  oil-wells,  was  bound  to 
deliver  one  third  of  the  oil  to  his  landlord  for  rent,  and  was  for- 
bidden by  his  contract  to  remove  any  of  the  oil  from  the  prem- 
ises without  having  notified  his  landlord,  in  order  that  ho 
might  measure  it.  Having  sent  the  landlord  word  which  he 
did  not  receive,  the  tenant  removed  certain  of  the  oil.  claim- 
ing that  no  rent  was  due.  The  defendants,  one  of  whom 
claimed  that  whatever  rent  was  due  was  due  to  him  by  vir- 
tue of  an  assignment  from  the  landlord,  which  claim  was  not 
well  founded,  thereupon  had  plaintiff  arrested  for  larceny  of 
the  oil,  both  of  them  being  instigated  by  a  purpose  to  get  pos- 
session of  the  oil.  The  plaintiff  having  been  discharged  by  the 
magistrate,  held,  want  of  probable  cause:  Vinal  v.  Core,  18 
W.  Va.  1. 


1870 


1871 


REQUISITES   OF   THE    ACTIOr,      §§  1087,  1088 


§  1087.    Good  Faith  and  Honest  Belief  L  imaterial. — 

And  ill  the  absence  of  this  probable  cause,  i.  e.,  if  the  cir- 
cumstances were  not  such  as  to  warrant  a  reasonable  and 
cautious  man  in  the  belief  that  the  plaintiff  was  guilty, 
the  fact  that  the  defendant  was  honest  in  his  belief  and 
acted  in  good  faith  is  no  defense.*  Yet  where  tlie  defend- 
ant was  not  the  prosecutor  in  fact,  but  was  the  instigator 
by  giving  false  information  which  led  to  the  arrest,  his 
motive,  and  that  he  acted  in  ^ood  faith,  is  relevant."  And 
honest  belief  and  good  faith  disprove  malice,  and  are 
relevant  on  the  question  of  damages.' 


§  1038.    Want  of  Jurisdiction  of  Court  Immaterial.  — 

Sometimes  it  turns  out  that  the  court  before  whom  the 
plaintiff  was  prosecuted  by  the  defendant  had  no  jurisdic- 
tion of  the  offense  charged.  This  was  early  urged  in 
England  as  an  objection  to  the  right  to  maintain  an 
action  of  malicious  prosecution,  but  without  success.' 
But  in  South  Carolina,®  Massachusetts,"  Alabama,"  Indi- 
ana,^ and  Nebraska,"  if  the  court  had  no  jurisdiction,  the 
action  will  not  lie.  Where  the  magistrate  has  no  juris- 
diction over  the  subject-matter,  or  a  total  want  of  jurisdic- 
tion ai:)pears  upon  the  face  of  the  warrant,  the  proceedings, 
it  is  said,  cannot  properly  be  called  a  prosecution,  the  ac- 
cused being  under  no  obligation  to  submit  to  the  arrest  or 


»Long  V.  Rmlgers,  19  Ala.  321; 
Ewing  V.  Sanford,  19  Ala.  605; 
Wincbiildle  v.  Portcrtield,  9  Pa.  St. 
139;  Hall  v.  Suydam,  G  Barb.  8.3; 
Farnam  v.  Feeley,  56  N.  Y.  451; 
Collins  V.  Hayte,  50  111.  353;  99  Am. 
Dee.  521 ;  Mowry  v.  Whipple,  8  R.  I. 
360;  Jacks  v.  Stiinpsou,  13  111.  701; 
Hall  V.  Hawkins,  5  Humph.  359; 
Shaul  V.  Brown,  28  Iowa,  37;  4  Am. 
Run.  151;  Lawrence  v.  Lanning,  4 
Ind  194;  Hays  v.  Blizzard,  30  Ind. 
457;  Merriam  r.  Mitchell,  13  xMe.  4.39; 
Hickman  v.  Griffin,  6  Mo.  37;  34  Am. 
Dec.  124;  Graeter  v.  Williams,  55  Ind. 
401 ;  Ramsay  v.  Arnott,  64  Tex.  320; 
Spalding   v.    Lowe,    56    Mich.    366. 


Contra,  Chandler  v.  McPherson,  11 
Ala.  916. 

^  Farnam  v.  Feeley,  ISQ  N.  Y.  451. 

»  Greer  v.  Whitfield,  4  Lea,  85. 

*Go8lin  V.  Wilcock,  2  Wils.  302; 
(1706);  Smith  v.  Cattcl,  2  Wils.  376 
(1768);  Elsee  v.  Smith,  1  Dowl.  &  R. 
97  (1822). 

*  Cockfield  V.  Braveboy,  1  McMull. 
270;  .39  Am.  Dec.  123. 

*  Bixby  ti.  Brundege,  2  Gray,  129; 
61  Am.  Dec.  443;  Bodwell  v.  Osgood, 
3  Pick.  .379;  15  Am.  Dec.  228. 

'  Marshall  v.  Betner,  17  Ala.  832. 
«  Turpinu.  Remy,  3  Black t.  210. 

*  Painter  v.  Ives,  4  Neb.  122. 


1089 


MALICIOUS   PROSECUTION. 


1872 


appear  at  the  trial  or  examination.  In  other  states  it  is 
held  that  the  fact  that  the  court  was  without  jurisdiction 
is  not  material;  for  "  the  sting  of  all  these  kinds  of  actions 
is  malice  and  falsehood,  and  the  injury  done  in  pursuance 
thereof."  ^  It  is  to  bo  observed,  however,  that  the  differ- 
ence is  entirely  one  of  pleading,  the  courts  that  deny  the 
right  to  sue  for  malicious  prosecution  placing  their 
judgment  on  the  ground  that  the  remedy  is  trespass,  and 
not  case.  This  technical  objection  is  of  course  of  little 
moment  in  those  states  where  the  reformed  codes  prevail. 

§  1089.  Guilt  or  Innocence  Immaterial.  —  The  ques- 
tion of  what  constitutes  probable  cause  does  not  depend 
upon  whether  the  offense  has  been  committed  in  fact,  nor 
whetlicr  the  accused  is  guilty  or  innocent,  but  upon  the 
prosecutor's  belief  based  upon  reasonable  grounds.^  It 
is  irrelevant  that  the  acts  of  the  accused  did  not  amount 
technically  to  a  crime;  it  is  enough  that  a  reasonable  and 
prudent  person,  unskilled  in  the  rules  of  law,  would  have 
believed  them  to  constitute  a  crime.^  But  if  the  plaintilf 
was  in  fact  guilty  as  charged,  he  has  no  right  of  action.* 

Illistuations.  —  A  respectable  young  woman  visited  with 
some  friends  a  dry-goods  store,  and  in  examining  some  goods 
she  picked  up  some  ribbons,  which  she  looked  at  and  then  ro- 
turnod.  After  the  party  lef',  the  proprietor  missed  a  roll  of 
ribbon,  searched  for  it  without  success,  and  being  told  by  a 
person  wlio  was  in  the  store  that  the  young  lady  had  been  look- 
ing at  them,  he  wrote  to  her  father,  accusing  her  of  stealing  it. 


«  Morris  /•.  Scott,  21  Wend.  281;  ,14 
Am.  Dec.  *i3(j;  Hayes  v.  Younglove,  7 
B.  Moil.  r)4.);  Scoae  v.  Stevens,  12 
Conn.  21  i»;  tli)  Am.  Dec.  Cll;  Sweet  v. 
Negu.s,  :iO  Midi.  40(5. 

-  Hacoii  r.  Tdwiie,  4  Cush.  217; 
Fagiian  r.  Knox,  GO  N.  Y.  525;  King 
V.  Col  via,  1 1  II.  I.  o82;  Jacks  v.  Stimp- 
son,  l.S  111.  701;  Wader.  Walden,  23 
111.  425;  Burliiigame  v.  Burlingame, 
8  Cow.  141;  Fo.sliay  v.  Ferguson,  2 
Denio,  ()17;  Sc;inlan  v.  Cowley,  2 
Hilt.  489;  Delegal  v.  Highley,  3  Bing. 
N.C.  950;  Faris  r.  Starkie,  3  B.  Mon. 
4;  Ilaulstou  v.  Jacksou,  1  Sueed,    128j 


French  v.  Smith,  4  Vt.  303;  24  Am. 
Dec.  GIG;  Swain  v.  StafiFord,  3  Ired. 
2S9;  Johnson  v.  Chambers,  10  Irid. 
287;  Harkrader  w.  Mooro,  44  Cal.  144; 
Seiliert  v.  Price,  5  Watts  &  S.  438;  40 
Am.  Dec.  525;  Bartlett  v.  Brown,  OK. 
I.  37;  75 Am.  Dec. 675;Bourn'j/\  Stoit, 
()2  III.  201 ;  Lytton  v.  Baird,  95  lii.l.  .349; 
McManus  v.  Wallis,  52  Tex.  .'j.'>4;  Le- 
gallee  v.  iJlaisdell,  134  Mass.  473. 

^  Baldwin  r.  Weed,    17  Wend.  224. 

*  Adam3  V.  Lisher,  3  Blackf.  241;  25 
Am.  Dec.  102;  Bartlett  v.  Brown,  G  R. 
I.  37;  75  Am.  Dec.  C75. 


1S72 


1873 


REQUISITES   OP  THE   ACTION. 


1090 


IS  it  is 
liction 
Lctions 

iUilMCe 

differ, 
iiy  the 
their 
ss,  uiul 
(•  little 
)revail. 

qucs- 
lopond 
ict,  nor 
)on  the 
[Is;-  It 
unount 
bio  and 
Id  have 
pluintilF 
tiou/ 

ed  with 
goods 
len  ro- 
roll    of 
by  a 
iMi  look- 
iling  it. 

24  Am. 

•A  Iro.l. 
10  Irc'il. 
C'al.  144; 
438;  40 
own,  G  K. 

r.  Sto'.it, 

Ind.  349; 

n.'M;  Lc 
473. 

eu.l.  224. 
f.  241;  25 
3WU,  0  R. 


Slie  showed  great  indignation  at  the  charge;  but  subsequently 
the  store-keeper,  having  been  told  by  another  party  that  she  had 
been  seen  wearing  ribbon  of  the  same  kind  at  church,  he  had 
her  arrested.  On  examination  she  was  discharged,  having  proved 
that  she  had  purchased  tlie  ribbon  which  she  wore  at  another 
phace,  and  the  ribbon  itself  having  been  found  in  the  interval, 
liaving  been  concealed  in  a  fold  of  goods  which  lay  uj)on  the 
counter  at  the  time.  Held,  thai  an  action  would  not  lie,  as  the 
btoro-keeper  had  reasonable  cause  to  believe  what  he  charged: 
Swain  V.  Stafford,  3  Ired.  287;  4  Id.  392. 

§1090.    Sufficiency    of   Charge    Irrelevant. — So  the 

sufficiency  of  the  charge  upon  which  the  prosecution  waa 
instituted  is  not  essential  to  the  maintenance  of  the 
action.  One  who  is  sued  for  malicious  prosecution  can- 
not be  heard  to  contend  that  the  complaint  upon  which 
he  procured  the  arrest  to  be  made  was  defective.'  The 
action  will  lie  although  the  indictment  be  defective;  "for 
in  either  case,  whether  the  indictment  be  good  or  bad, 
the  plaintiff  is  equally  subjected  to  the  disgrace  of  it,  and 
put  to  the  same  expense  in  defending  himself  against  it."^ 
But  although  in  the  opinion  of  most  of  the  courts  that 
the  plaintiff  was  prosecuted  by  an  insufficient  process,  or 
before  a  court  not  having  jurisdiction,  is  not  material, 
for  the  reason  that  tho  plaintiff's  damage  is  as  great  in 
one  case  as  in  the  other,  it  is  nevertheless  requisite  that 
there  shall  be  legal  process  of  some  kind  to  which  the 
plaintiff  was  forced  to  submit.  For  this  reason  it  was 
held  in  Newjield  v.  Coppcrman^  that  a  complaint  presented 


'Piirli  V.  Reed,  30  Kan.  534; 
Kline  r.  Shuler,  8  Ired.  484;  4'J 
Am.  1><!C.  402;  Stanclififw.  Palmoter, 
18  lii.l.  .321;  Cox  v.  Kirkpatrick,  8 
BlacUf  37;  Dennis  v.  Ryan,  G5  N.  Y. 
3S5;  22  Am.  Rep.  635;  Forrest  v. 
Collier,  20  Ala.  175;  60  Am.  Dec.  190; 
Collins  i\  Love,  7  Blackf.  410;  Au<ler- 
8oa  ('.  Buchanan,  Wright,  725;  Mor- 
ris r.  Soott,  21  Wend.  281;  Barton  t>. 
Kavauaugh,  12  La.  Ann.  3.32;  Farley 
V.  Daiiks,  4  El.  &  B.  493;  Streight  v. 
Bell,  37  Ind.  550;  Scheer  v.  MuKeown, 
29  Wis.  586;  Marks  v.  Townsend,  97 
ua. 


N.  Y.  590;  Porter  r.  Gjertson,  37  Minn. 
386;  Ward  v.  Sutor.  70  Tex.  .343;  8 
Am.  St.  Rep.  606.  But  see,  holding 
that  in  this  case  the  action  is  not 
malicious  prosecution,  but  trespass, 
Maher  v.  Ashmead,  30  Pa.  St.  344;  72 
Am.  Dec.  708;  Kramer  v.  Lott,  50  Pa. 
St.  495;  88  Am.  Dec.  556. 

■•*  Pippet  V.  Heam,  5  Barn.  &  Aid. 
634;  Chambers  v.  Robinson,  1  Strange, 
691 ;  Jones  v.  Gwynn,  10  Mod.  214; 
Wicks  V.  Fentham,  4  Term  Rep.  247. 

3  47  How.  Pr.  87. 


1000 


MALICIOUS    PROSECUTION. 


1874 


to  a  magistrate  which  resulted  merely  in  his  sending  u 
letter  to  tlie  accused  asking  him  to  call  was  not  a  suffi- 
cient  ground  for  the  action.  So  in  Heyward  v.  Cuthhert,^ 
the  defendant  went  before  a  magistrate  and  made  an 
information  in  the  form  of  an  affidavit  drawn  up  by  him- 
self, ill  which  he  charged  the  plaintiff  with  a  felony  in 
stealing  a  slave.  No  warrant  was  issued  thereon,  but  the 
magistrate  returned  it  with  other  papers  to  the  clerk's 
office,  with  an  indorsement  to  the  effect  that  in  his  opinion 
the  supposed  felony  was  only  a  trespass,  adding  the  words 
"  not.  pros."  No  further  proceedings  were  ever  had  there- 
under.  This,  it  was  ruled,  did  not  show  such  a  commence- 
ment  of  a  prosecution  as  to  sustain  the  action.  The  court 
held  tliat  the  phrase  "  commencement  of  the  prosecution" 
supposed  some  i)roceeding  against  the  party  complaining, 
but  here  the  information  was  no  j^  ore  than  a  statement 
of  facts  from  which  the  magistra.  before  whom  it  was 
made  was  called  on  to  determine  whether  in  law  they 
authorized  a  criminal  prosecution.  To  this  proceeding 
the  accused  was  in  no  sense  a  party.  The  test  by  which 
to  determine  whether  a  prosecution  had  or  had  not  com- 
menced was  to  inquire  whether  the  proceedings  were  in 
such  a  situation  as  to  put  it  in  the  power  of  the  party 
prosecuted  to  compel  the  state  to  proceed,  or  to  procure 
his  own  discharge,  and  this  can  never  happen  until  he  is 
a  party  to  them.  The  action  will  not  lie  where  the  arrest 
was  made  on  a  paper  in  no  sense  a  warrant,  being  simply 
the  recital  of  a  charge  made  by  defendant  under  oath." 
It  cannot  be  sustained  where,  because  of  a  fatal  defect  in 
the  warrant  of  arrest,  the  alleged  prosecution  had  no  legal 
existence.^ 

Illustrations.  —  S.  charged  B.  by  affidavit  with  obtaining 
money  from  him  by  false  pretenses.  He  was  discharged  bo- 
cause  the  affidavit  did  not  sufficiently  charge  a  legal  crime. 


1  4  McCord.  355. 

>  Lewiu  V.  Uzuber  ,65  Md.  341. 


'  Cockiield  V.  Braveboy,  2  McMuU. 
270;  39  Am.  Dec.  123. 


1874 


1875 


7r: 


REQUISITES   OP   THE   ACTION.      g§  1091,  1092 


ling  a 
I  suffi- 
thhert,^ 
ido  ail 
y  him- 
ony  in 
>ut  the 
clerk's 
)piniou 
e  words 
fl  thero- 
imcnce- 
10  court 
cut  ion" 

ilaining, 
,atement 
Q  it  was 
law  tliey 
oceocling 
)j  which 
not  com- 
wcrc  in 
|he  party 
procure 
iitil  he  is 
Iho  arrest 
g  simply 
er  oatli." 
defect  ill 
uo  legal 


obtaining 
largetl  be- 
ral  crime. 

I,  2  McMull. 


Ifdd,  no  defonse  to  an  action  of  malicious  prosecution  by  B. 
iigainst  S.:  Streight  v.  Jiell,  37  Ind.  550.  S.  sued  D.  for  charging 
liim  with  perjury  for  testifying  in  a  criminal  case  that  he  had 
not  altered  a  certain  warrant.  Held,  that  the  fact  that  liis 
evidence  in  the  criminal  case  was  on  an  immaterial  point,  and 
therefore  did  not  constitute  perjury,  was  immaterial:  Smith  v. 
Ikavcr,  4  Jones.  513.  B.  had  S.  arrested  for  stealing  a  dog.  8. 
\va.s  discharged,  and  sued  B.  for  malicious  prosecution.  Heldf 
that  the  fact  that  dogs  were  not  the  subject  of  larceny,  and  B.'s 
information  therefore  did  not  charge  a  crime,  was  irrelevant: 
Shnid  V.  Brown,  28  Iowa,  37;  4  Am.  Rep.  151.  The  affida\nt 
to  procure  the  arrest  of  A  for  false  pretenses  was  defective 
because  it  did  not  charge  the  pretense  to  have  been  made  con- 
„rning  an  existing  fact.  Held,  that  the  action  would  never- 
theless lie:  Stocking  v.  Howard,  73  Mo.  25. 

§  1091.  Personal  Knowledge  by  Prosecutor  Unneces- 
sary.—  The  defendant  need  not  have  actual  personal 
knowledge  of  the  facts  upon  which  he  acts.  He  may  act 
upon  facts  and  circumstances  brought  to  his  knowledge 
through  the  usual  and  ordinary  channels.  Ho  must, 
however,  honestly  believe  that  the  information  so  ob- 
tained is  true,  and  it  must  be  of  that  character  and 
obtained  from  such  Gources  that  men  generally  of  ordi- 
nary care,  prudence,  and  discretion  would  have  acted  in 
a  similar  way  if  they  had  been  similarly  situated.*  If 
the  defendant  in  an  action  for  the  malicious  prosecution 
of  a  criminal  action  instigated  such  prosecution  without 
probable  cause,  the  fact  that  the  person  who,  at  his  insti- 
gation, made  the  criminal  complaint  had  probable  cause  to 
believe  it  to  be  true  is  no  defense.''  But  one  who  institutes 
an  unsuccessful  prosecution  is  not  necessarily  liable  there- 
for because  he  failed  to  ascertain  the  reputation  of  his 
informants  for  veracity.' 

§  1092.  Subsequently  Discovered  Facts  Irrelevant. — 
The  test  of  probable  cause  is  the  facts  as  they  were  at 
the  time  the  charge  was  made.     Subsequent  facts  which 

Mtalloway  v.  Burr,  .S2  Mich.  332;  '  Woodworth  v.  Mills,  61  Wis.  44; 
Brown  v.  Willoughby,  6  Col.  1.  50  Am.  Dec.  135. 

»  Jordan  v.  R.  R.  Co.,  81  Ala.  220. 


§1093 


MAUCIOUS   PROSECUTION. 


3876 


the  prosecutor  did  not  then  know  are  no  defense,  even 
though  had  ho  been  aware  of  them  at  the  time  they 
would  have  justified  l>is  action.*  It  is  not  competent  to 
sliow  that  the  accused  was  guilty  of  another  and  differ- 
ent  offense  from  that  charged;^  and  even  if  the  prosecutor 
know  facts  sufficient  to  justify  his  action,  he  will  not  be 
protected  unless  he  believed  them  likewise.^  But  the  guilt 
of  the  plaintiff,  or  facts  justifying  the  action,  though  un- 
known at  the  time  to  the  defendant,  are  admissible  in 
mitigation  of  damages.* 

§  1093.  The  Judicial  Proceedings  —  When  Evidence 
of  Probable  Cause.  —  The  finding  by  the  grand  jury  of  a 
true  bill  is  evidence  prima /ac?'c  of  probable  cause, though 
the  prosecution  may  result  in  an  acquittal.®  So  is  tho 
committing  or  binding  over  of  the  accused  by  a  magistrate 
to  appear  and  answer,  even  though  ho  is  subsequently 
acquitted."  So  is  a  judgment  of  conviction,^  even  when 
reversed  by  a  higher  court  on  appeal.*'    In  Whitney  v.  Peck- 


'  Swain  V.  StafiFord,  ^  Ircd.  287;  4 
Ireil.  31>2;  Sims  v.  McLendon,  3  Strob. 
557;  Delegel  v.  Higldoy,  3  Bing.  N.  C 
950:  Johnson  t*. Chambers,  10  Irod.  287; 
Fo>hey  v.  Ferguson,  2  Denio,  C17;  Gal- 
loway r.  Stewart,  49  liid.  15(5;  19  Am. 
Rop.  (i77;  Skidmore  v.  Brieker,  77  111. 
1(>4;  Josselyn  i<.  McAllister.  25  Mich. 
45;  French  v.  Smith,  4  Vt.  .SG3;  24 
Am.  Dec.  G16;  Hogg  v.  Pinckney,  10 
S.  C.  387.  Contra,  Bell  r.  Puarccy,  i> 
Ired.  83. 

■  lall  V.  Palen,  38  Mo.  13.  An 
unfounded  prosecution  cannot  bo  jus- 
tilied,  or  the  prosecutor's  malice  dis- 
priivcd,  by  evidence  of  offenses  com- 
niitted  by  plaintiflf  other  than  those  for 
■wliieh  he  .vas  prosecuted  by  defendant: 
Carson    .  Edgeworth,  43  Mich.  241. 

-'  Bigelow'a  Leading  Cases  on  Torts, 
198. 

*  Bacon  ?'.Towne,  4  Cush.  217;  New- 
ton r.  Weaver,  13  R.  I.  016. 

'  Garrard  v.  Willett,  4  .1.  J.  Marsh. 
G2S;  Sharpe  r\  Johnston,  70  Mo.  000; 
Peek/'.  Choteau,  91  Mo.  1.S8;  00  Am. 
Rep.  236.  Contra,  Motes  v.  Bates,  80 
Ala.  382. 


"  Maddox  V.  Jackson,  4  Munf.  402; 
Hale  V.  Boylen,  22  W.  Va.  234;  Ra- 
leigh V.  Cook,  00  Tex.  438. 

7  Olsen  V.  Neal,  63  Iowa,  214.  The 
conviction  of  tho  plaintiff  is  conclusive 
evidence  of  the  existence  of  probal.io 
cause  only,  when  there  is  no  proof 
showing  what  testimony  was  given  at 
tho  trial:  Bowman  v.  Brown,  52  Iowa, 
437. 

^  Goodrich  v.  Warner,  21  Conn.  432; 
Womack  v.  Circle,  29  Gratt.  192. 
And  outside  of  these  two  states,  it  is 
hold  that  if  tho  defendant  is  cotivieted 
in  the  iirst  instance  and  appeals,  iiud 
is  acquitted  in  the  appellate  court, 
tho  conviction  below  is  nevertheless 
conclusive  evidence  of  probable  cause, 
provided  the  magistrate  acte<l  judi- 
cially, and  not  ministerially,  an(l  the 
judgment  was  not  obtained  fraudu- 
letjtly:  Whitney  v.  Peckhaiii,  15  Mass. 
243;  Cloon  v.  Gerry,  13  Gray,  203; 
Donnohey  v.  Woodsum,  100  Mass. 
197;  Kayer.  Kean,  18  B.  Mon.  8;i9; 
Herman  v.  Brookerhoff,  8  Watts,  240; 
Witham  v.  Gowen.  14  Me.  301;  Pay- 
sou  V.  Caswell,  22  Me.  212;  Grifiis  v. 


1877 


REQUISITES   OF  THE  ACTION. 


§  1094 


ham,'^  it  was  held,  in  Massachusetts,  in  1818,  that  a  con- 
viction of  the  plaintiff  of  the  offense  charged  before 
a  justice  of  the  peace  having  jurisdiction  was  conclusive 
evidence  of  probable  cause.  This  ruling  was  questioned 
ill  Bacon  v.  Towne^  in  which  the  magistrate  had  only- 
jurisdiction  to  bind  over;  that  act  being  considered  at 
most  only  prima  facie  evidence.  In  New  York  it  is 
'prima  facie  evidence  only.'  So  is  the  disagreement  of 
the  jury  at  the  trial.*  It  was  said  in  an  early  English 
case''  that  if  the  evidence  offered  to  the  jury  was  suffi- 
cient to  cause  them  to  pause,  it  amounted  to  probable 
cause;  but  this  does  not  require  the  plaintiff  to  prove 
affirmatively  that  the  jury  did  not  pause  or  deliberate." 

§  1094.  The  Judicial  Proceeding's — When  Evidence 
of  Want  of  Probable  Cause. —  An  acquittal  after  investi- 
gation is  evidence  of  want  of  probable  cause; ^  so  is  a 
discharge  by  the  investigating  magistrate;*  so  is  the  ig- 
noring of  a  bill  for  the  crime  charged  by  the  grand  jury.' 


Sellars,  4  Dev.  &  B.  176;  2  Dev.  &  B. 
492;  31  Am.  Dec.  422;  Commonwealth 
,•.  Davis,  11  Pick.  432;  Welch  «.  R.  R. 
Co.,  14  R.  I.  609;  Philips  v.  Kalama- 
zoo, 53  Mich.  33.  Where  an  accusa- 
tion of  felony  is  withdrawn,  and  re- 
spondent is  convicted  of  a  misdemeanor 
iiicludod  in  it,  but  is  acquitted  on  ap- 
peal, tlio  conviction  is  not  such  evi- 
dence of  probable  cause  as  will  defeat 
an  action  for  malicious  prosecution 
liiaed  on  the  charge  of  felonyj  Labar 
V.  Crane,  49  Mich.  561.  In  a  suit  for 
the  lualicloua  prosecution  of  a  civil 
action,  r,  appeared  that  defendant 
prevaileil  in  the  United  States  circuit 
court,  but  that  there  was  a  reversal  in 
the  United  States  supreme  court. 
//(/(/,  that  the  judgment  of  the  cir- 
cuit cfKirt  w;vs  conclusive  on  the 
question  of  probable  cause:  Clements 
r.  0  lorless  Excavating  Apparatus  Co., 
07  Mil  3(51. 

'  1,')  Mass.  243. 

MCiish.  217(1849). 

»  Bart  V.  Place.  4  Wend.  591  (1830). 

Molmsont;.  Miller,  63  Iowa,  529; 
60  Aui.  Rep.  753. 


'Smith  V.  McDonald,  3  Esp.  86. 
And  see  Grant  w  Duel,  2  Rob.  (La.) 
17;  38   Am.  Dec.  228. 

*  Bacon  v.  Towne,  4  Cush.  217. 

'  Straus  V.  Young,  36  Md.  246;  Wil- 
liams V.  Vanmeter,  8  Mo.  3.S9;  41 
Am.  Dec.  644.  See  Heldt  v.  Webster, 
60  Tex.  207.  Contra,  Bitting  v.  Ten 
Eyck,82Ind.  421;  42  Am.  Rep.  505; 
Grant  v.  Deuel,  3  Rob.  (La.)  17;  38  Am. 
Dec.  228;  Griffin  v.  Chubb,  7  Tex*. 
603;  58  Am.  Dec.  85. 

*  Bostick  V.  Rutherford,  4  Hawk. 
83;  Mitchinson  v.  Cross,  58  111.  300; 
Cooper  V.  Utterbach,  37  M<1.  282; 
Sharpe  v,  Johnston,  76  Mo.  660;  Frost 
V.  Holland,  75  Me.  108;  Bornholdt  v. 
Sonillard,  36  La.  Ann.  103. 

*  Sappingtou  v.  Watson,  50  Mo.  83; 
Gilbert  v.  Emmons.  42  111.  143;  89 
Am.  Dec.  412.  In  California,  where 
proceedings  before  a  grand  jury  are 
not,  as  formerly,  a  mere  examination  of 
the  case  of  tlie  prosecution,  but  are  in 
fact  a  preliminary  trial,  and  one  in 
which  the  accused  may  appear  by  his 
witnesses  ami  make  his  defense,  and 
may  himself  be  sworn  aad  testify  iu 


§1094 


MALICIOUS   PROSECUTION. 


1878 


But  these  facts  are  not  conclusive  of  want  of  probable 
cause:  they  are  only  prima  facie  evidence  of  it.'  It  is 
error  for  the  court  to  charge  that  the  bare  fact  of  "  arrest 
and  liberation  "  in  the  police  court  establishes  conclu- 
sively  a  want  of  probable  cause.''  The  defendant  may  show 
that  the  plaintiff  was  actually  guilty,  though  acquitted, 
and  this  by  any  evidence  in  his  power,  though  discovered 
after  the  prosecution  began  or  after  it  ended.  "  The  law 
does  not  give  the  action  to  a  guilty  man.  He  brings  it 
as  an  innocent  one,  and  if  it  appear  on  the  trial  in  any 
way  that  he  is  not,  he  must  fail."'*  A  judgment  for  the 
defendant  in  an  attachment  suit  does  not  estop  the  plain- 
tiff in  an  action  for  wrongfully  and  vexatiously  suing  it 
out  from  proving  that  the  debt  upon  which  the  attach- 
ment issued  was  actually  due.*  A  discharge  from  prose- 
cution by  a  nolle  prosequi  is  not  prima  facie  evidence  of 
want  of  probable  cause;®  nor  is  the  failure  of  proceedings 
to  declare  the  plaintiff  a  bankrupt;**  nor  the  abandonment 
of  the  prosecution.' 

Illustrations.—  The  firm  of  A.  &  Co.,  claiming  that  S.  was 
indebted  to  them,  commenced  an  action  to  enforce  payment.  S. 
defended,  and  while  the  action  was  at  issue,  his  brother  brouglit 
suit  against  him,  which  was  not  defended,  and  recovered  jiuig- 
ment.  A.  &  Co.,  being  advised  by  their  attorney  that  S.  had 
committed  an  act  of  bankruptcy,  filed  a  petition  in  the  bank- 
rupt court  against  him  asking  for  a  warrant  for  the  seizure  of 
goods,  which  warrant  was  granted,  and  the  goods  seized.  Tliere- 
after  the  suit  of  A.  &  Co.  against  S.  was  decided  adversely  to  A, 
&  Co.,  and  the  proceedings  in  bankruptcy  were  dismissed  on 
the  ground  that  A.  &  Co.  had  no  claim  against  S.    Held,  not  to 


his  own  behalf,  the  fact  that  the 
grand  jury  dismissed  the  charge  on 
which  plaintiff  in  an  action  for  mali- 
cious prosecution  was  arrested  afi'ords 
110  evidence  of  want  of  probable  cause 
for  the  complaint:  Ganea  v.  R.  R.  C;., 
51  Cal.  140. 

'  Cooper  V.  Utterback,  37  Md.  282; 
Flickinger  v.  Wagner,  46  Md.  581; 
Mitchinson  v.  Cross,  58  111.  .S66;  Israel 
V.  Brooks,  23  111.  575 

'  Rogera  v.  Mabouey,  62  Cal.  611. 


»  Bell  V.  Pearcy,  5  Ired.  83;  Barlwr 
V.  Gould,  20  Hun,  44G;  Parkhurst  v. 
Masteller,  57  Iowa,  474. 

*  Marshall  v.  Betner,  17  Ala.  832. 

*  Flickinger  v.  Wagner,  46  Md. 
580;  Yocum  v.  Polly,  1  B.  Mon.  358; 
36  Am.  Dec.  583. 

*  Stewart  v.  Sanneborn,  98  U.  S. 
187. 

'  Cockfield  V.  Braveboy,  2  McMuIl, 
270;  39  Am.  Dec.  123. 


1879 


REQUISITES   OF   THE    ACTION. 


g  1095 


bo  sufTiciont  to  entitle  S.  to  maintain  a  action  against  A.  «^'  Co. 
for  malicious  institution  of  ])roco('(lings  in  bankruptcy  against 
him:    Stewart  v.  Sanneborii,  98  U.  S.  187. 

§  1095.  Evidence  of  Character  and  Reputation  of  Plain- 
tiff. —  Evidence  of  the  general  bud  reputation  of  the  jiliiin- 
tifT  before  the  institution  of  the  i)rosecution  is  admissible 
on  the  question  of  reasonable  cause.  The  same  facts 
Avhich  would  raise  a  strong  suspicion  in  the  mind  of  a 
cautious  and  reasonable  man  against  a  person  of  noto- 
riously bad  character  for  honesty  and  integrity  would 
make  a  slighter  impression  if  they  tended  to  throw  a 
charge  of  guilt  upon  a  man  of  good  reputation.'  Bad 
ohai'acter,  added  to  other  circumstances,  miglit  amount  to 
such  a  reasonable  ground  of  suspicion  as  to  induce  a  [»er- 
son  innocent  of  any  malicious  motives  to  proceed  against 
him;  for  it  requires  weaker  circumstances  of  suspicion  to 
commence  a  prosecution  against  a  man  of  bad  charaeter 
than  against  a  man  of  good  character.'^  So  cvidenoo  of 
his  good  character  and  reputation  is  admissible  on  the 
plaintiff's  behalf.^  But  the  cliaracter  of  the  [)laintiir  after 
the  prosecution  cannot  be  gone  into;  for  it  could  have  had 
no  effect  on  its  institution.*  Evidence  of  the  character  of 
the  plaintiff  may  be  admissible  on  another  ground;  i.e., 
in  mitigation  of  damages.  In  order  to  ascertain  tlie  in- 
jury done  to  the  plaintiff,  the  jury  must  necessarily  take 
into  consideration  his  personal  character.  If  good,  his 
damages  should  be  greater;  if  bad,  smaller.'^  But  only 
his  general  character,  not  particular  acts,  is  admissible." 


']]acou  V.  Townc,  4  Cush.  217; 
Hitchcock?'.  Nortli,  5  Rob.  (La.)  .328; 
.S'J  Am.  Dec.  540;  Iloseukruns  i\ 
Biirkur,  115111.  .331;  56  Am.  Rep.  1G9. 

''  I'.iistick  r.  RutherforJ,  4  Hawks, 
83<  Sliciwood  V.  Reed,  ,35  Conn.  450; 
95  Am.  Dec.  285;  Martin  v.  Hardcsty, 
27  Alii.  458;  02  Am.  Dec.  773. 

3  Woodworth  V.  Mills,  61  Wis.  44; 
fiO  Am.  Rep.  135;  Blizzard  r.  Hays, 
4(iliul.  166;  15  Am.  Rep.  291.  Contra, 
Kcuiicdy  V.  HoUaday,  25  Mo.  App.  503. 


*  Bostick  11.  Rutherford,  4  Hawks, 
83;  Winelnddle  v.  PorterlieKl,  '.)  I'a. 
St.  137. 

*  Bostick  V.  Rutherford,  4  Hawks, 
83;  \Vinel)iddIe  >:  rorterluld,  ".I  Pa. 
St.  1.37;  O'Brien  v.  Fnisier,  47  N. 
J.  L.  349;  54  Am.  Rep.  170;  (liugory 
V.  Cliamhers,  78  Mo.  294. 

«  Gregory  v.  Thomas,  2  Bihl>.  286;  5 
Am.  Dec.  608;  Miller  v.  Brouu,  3  Mo. 
127;  23  Am.  Dec.  093. 


srsssBS 


1000 


MALICIOUS   rnOSECUTION. 


18S0 


Evidonoo  of  dofondant's  reputation  for  pcaceaMcncss  at 
tho  time  of  tho  eiu'ountor  out  of  which  tho  prosecution 
grew  is  inadmissible  as  ovidenco  in  chief.* 

§  1096.  Advice  of  Counsel. —The  advice  of  counsel, 
given  after  a  full  examination  oi'  the  facts  in  tho  case,  will 
protect  the  prosecutor  from  a  subsequent  action;  for  it 
makes  out  a  case  of  probable  cause.'*  And  this  is  so  even 
thou<,di  tho  opinion  is  incorrect  and  the  advice  wrong, 
provi<led  they  are  given  undorstaudingly.'  But  the  pros- 
Murphy  r.  Larson,  77  lU.  17~;  Bart- 
lett  ('.  Ilrown,  0  K.  I.  37;  75  Am.  Dec. 
(i7J;  Clements  v.  Obsly,  UC.ir.  ^  K. 
G8G;  Richanlson  v.  Virtue,  2  lluii,  208; 
Eastiuiin  r.  Kcaaor,  44  N.  11.  518; 
Komincr  ?».  Wilt,  4  Scrg.  fc.  II.  :!().  In 
Lo  Maistro  «•.  Hunter,  Bright.  4'.irt, 
Ko^ersi,  J.,  said:  "Tho  niiiuinn  (.f  lui- 
valo  counsel  of  a  prosKieutioii  cantiot 
amount  to  proof  of  prohalilo  lausi-,  nor 
prevent  a  recovery,  iiuli'si  tlio  facts 
c'k'arly  warrant  it,  and  are  itorrectly 
and  truly  stated.  Even  tlie  ajiplica- 
tion  to  counsel  and  th(3  ojiinion  of 
counsel,  in  order  to  ho  availalilointlio 
estahlishmcnt  of  prohahlo  cause,  imist 
not  1)0  resorted  to  as  a  mere  cover  for 
the  prosecution,  but  must  hu  tho  re- 
sult of  an  honest  and  fair  purpose,  and 
tlic  Ktatement  mado  at  the  time  must 
bo  fair  and  full,  and  consistent  with 
tiiat purpose."  Woodward,.!.,  in  Wal- 
ter r.  Sample,  25  I'a.  St.  275,  decided 
several  years  later,  thought  tho  words 
"unless  the  facts  ckaily  warrant  it," 
as  used  by  Ilogers,  J.,  i:i  Lo  Maistro 
r.  Hunter,  ill  chosen  and  liable  to  mis- 
representation. Wliat  must  the  facts 
"clearly  warrant," — tlio  opinion  of 
counsel,  or  tho  prosecution?  AVhicIi- 
ever  was  intended,  this  expression 
would  make  the  defense  depend  on 
tho  sou.idncss  of  the  legal  opinion.  If 
the  facts  must  clearly  warrant  the 
legal  opinion,  then  the  legal  opinion, 
to  bo  a  defense,  must  bo  the  judgment 
of  the  highest  court,  — •  nmst  be  correct 
at  all  hazards;  if  the  facts  must  clearly 
warrant  the  prosecution,  then  the  pro- 
fessional opinion  is  useless.  "No 
matter  how  candidly  and  faithfully  a 
prosecutor  has  submitted  the  facts  to 
his  legal  adviser  and  followed  his  ad- 


'  Walker  c.  Tittman,  108  Ind.  341. 

■'  Snow  r.  Allen,  1  Stark.  502;  Ra- 
veng.i  r.  Mackintosh,  2  Barn.  &  C 
C!K{;  Cliandler  r.  McPherson,  11  Ala. 
91(>;  Turner  r.  Walker,  3  tiill  &  J. 
380;  22  Am.  Dee.  32!);  Wood  r.  Weir, 
5  ]{.  Mon.  544;  Skidmore  r.  Brieker, 
77  111.  104;  Wicker  r.  llotehkiss,  G2 
III.  107;  14  Am.  Rep.  75;  Kishcrn 
Forre:iter,  33  Pa.  St.  501 ;  P(.tter  r. 
Scale,  St'al.  217;  Lcmay /-.  Williams, 
32  Arlv.  lOli;  Palmer  r.  Riiliardsou,  70 
111.  5l.-);  Davie  r.  Wislier,  72  111.  202; 
Philli[is  ('.  Bonham,  10  La.  Ann.  387; 
Gould  *•.  <Jardi  er,  8  La.  Ann.  1 1;  Hall 
V.  Suydain,  0  Barb.  83;  Amesw.  Snider, 
G'J  III  ;{70;  Burgett  /».  Burnett,  43  Ind. 
78;  Blunt  r.  Little,  3  Mason,  102; 
Stone  /•.  Swift,  4  Pick.  3Si);  10  Am. 
Dec.  :U'.»:  (irilHn  r.  Chubb,  7  Tox.  C03; 
58  Ala.  Dee.  85;  Bartlett  /'.  Brown,  0 
R.  I.  37;  75  Am.  Dec.  075;  Ames  r. 
Ratiibun,  55  Barb.  194;  37  How.  Pr. 
28<};  C.illinsv.  Hayte,  50  111.  3.37;  J)9 
Am.  Dec.  521;  Anderson  r.  Friend,  71 
111.  47.);  Wright*'.  Hanna,  'JSInd.  217; 
Allen  r.  Codman,  131)  M.iss.  130.  In 
Texas  it  is  held  that  it  is  not,  as  mat- 
ter of  law,  a  <lofenso  tliat  defendant 
aetctl  under  tiio  advice  of  counsel.  The 
questions  of  malice  and  pro1)ablo  cause 
arc  for  the  jury  on  all  tho  facts  in  the 
case:  (Ihwgow  v.  Owen,  Ot)  Tex.  107. 
Tiie  ilefenso  of  advice  of  counsel  is 
referable  rather  to  tho  issue  of  malice 
than  to  thatof  probable  cause:  Brewer 
V.  .Jacobs,  22  Fed.  Rep.  217.  Tho  de- 
fense need  not  ho  specially  pleaded: 
Sparling  )■.  Conway,  75  Mo.  510;  Fol- 
ger  V.  Washburn,  137  Mass.  00.  It  is 
admissible  under  the  general  denial: 
Sparling  r.  Conway,  0  Mo.  App.  283. 

"  Hall  V.  Hawkins,  5  Humph.  359; 


1881 


REQUISITES   OP   THE    ACTION'. 


1090 


rc'utor  must  Imvo  niiulo  a  full  and  fair  disclosuro  of  all 
(hci  material  fufts  to  liis  couns(!l.'  Tlicrc  must  Ijc  no  sup- 
pression, evasion,  or  falsehood  on  the  client's  ])art  in 
slating  his  ease  to  the  attorney;  he  nnist  not  make  Iho 
application  as  a  mere  cover  for  the  jiroseeution.'^  Tho 
paity  niust  not  omit  to  state  every  fact  known  to  him, 
even  (houj^h  he  honestly  supposed  it  was  not  material,' 
and  he  must  have  divulf^ed  every  fact  whi(  h  hy  reason- 
able diligence  he  might  have  ascertained;'*  it  is  not  neces- 


vici',  if  tlii-y  turn  out  iiiMiifTlciciit  for 
till!  riiii[i()rt  ut'  tlio  iiroseciition,  lio  is 
liililo  in  (111  actiiiii  for  iiiiilicioas  pros- 
fi  iitioii.  Oil  tlii.i  in'iiK'iijlc  uvory  ac- 
(|uiltiil  of  !i  (Icfciiiliiiit  woulil  ho 
li.llowcd  hy  such  ii;i  iiclioii.  A  qiiali- 
:iLali(iii  of  thi!  riilo  ill  Icrms  liko  these 
ilf'.Ui'oy,-)  llio  Mih>  itself.  Tho  law  is 
nut  Ni).  I'i'oft  .ssi  i- 1  of  tho  liiw  aro  tho 
jiroi.xT  advisers  of  men  in  douhtful 
cinu  1  'unoLM,  and  thi'ir  advice,  when 
fairly  ohtaincd,  (.'xciiiitt.s  tho  party 
whii  acts  ii[)iiii  it  from  tho  iinpiitatiou 
(if  lUMci'cdiii.;  iiialicicpii.ly  and  without 
pidliaMo  can.e.  1 1  i;iuy  h^i  t'fronoous, 
but  tiio  client  is  not  responsihlo  for 
tin;  error.  Jio  is  not  llio  insurer  of 
liis  lawyer.  W'hetin'r  the  facts  amount 
t(Hirol)ahli!  eaunu  is  the  very  <iuo9tion 
Kiiliaiitted  to  counsel  in  such  cases; 
and  wlu  n  llio  client  is  instructcil  that 
they  do,  lu!  has  taken  all  tho  precau- 
tiiin  denian  led  of  a  good  citizen"; 
Walter  r.  Sample,  "J,")  I'a.  St.  275. 
The  defendant  may  prove  hy  his  .attor- 
ney what  opinion  the  latter  gave  him 
in  to  his  rif^lit  of  action  and  arrest  of 
the  pi  lintitl'.  To  limit  tho  inipiiry  as 
to  whether  tho  attorney  advisetl  tho 
•suit  to  ho  brouglit  is  iniin-opcr:  Col- 
lins r.  Hay  to,  50  III.  337;  Itl)  Am.  Doc. 

5i;i. 

'  Ash  ?'.  Marlow,  20Ohio,  119;  Kim- 
inel  r.  Henry,  01  III.  505;  Sliarpo  r. 
Jdlinston,  50  Mo.  557;  Walter  y\  Sam- 
pie,  '27)  Pa.  St.  275;  Ross  /•.  Inness,  35 
111.  4.S7;  Hall  r.  Suydam,  0  IJarb.  83; 
Cooper  r.  Uttorhach,  .'57  M<1.  282;  Bliss 
i\  Wyinan,  7  C"al.  257;  Thompson  v. 
Liinilev,  50  How.  I'r.  105;  Aldridgew. 
tliiuefiill,  28  Iiid.  02;  Forhes  v.  Hag- 
iiiau,  75  \'a.  HiS;  Deconx  r.  Lionx,  33 
Li.  Ann.  392;  Logan  r.  Maytag,  57 
Iowa,  107;  Smith  V.Davis,  3  Mout.  109; 


Roy  r.  (roings,  112  111.  <""'';  Mooro  ?'. 
R.  It.  Co.,  37  Minn.  17;.l<'i  ■  <".  .luiiei, 
71  Cal.  80:  Cuthl.ert  /'.  «ialloway,  35 
Fed.  Uep.  4C.ll;  .Mcsher  r.  Iddiuu's,  12 
Iowa,  5r)3;  licidler  r.  Vx  iriiaort,  25  III. 
App.  422. 

■'  Walter  r.  Sample,  25  Ta    St.  .'",.-). 

»  Hill  r.  I'ahn,  38  Mo.  13;  .liarpoc. 
Johnston,  5!t  Mo.  557;  luifc  hco  Motea 
V.  Bates,  80  Ala.  3S2. 

*  Sappingtoii  V.  Watson,  50  Mo.  83; 
Thomp.son  v.  .Mnssey,  3  (rreeid.  305; 
Stevens  r.  Fa.ssett,  27  Me.  2(10;  I'ip- 
kin  /•.  Hanck',  I,")  Mi.  Ap]>.  37i5;<Ial- 
loway  *'.  Stewart,  J'.)  Ind.  15(1;  IUi-s»^, 
Wyman,  7  Cal.  257;  Hewlett  i: 
Crutchlcy,  5  Taunt.  277.  Contni, 
Johusou  r.  Miller,  (10  Iowa,  5(12;  58 
Am.  Dee.  231.  In  .lohnson  v.  Milh  r, 
sitjini,  the  court  instructed  tho  jiiry 
as  follows:  "  Wiiether  or  not  t!io  do- 
foiulants,  or  somo  of  them,  did,  lio- 
beft.rc  instituting  the  proeoediie^s, 
make  a  full,  fair,  and  honest  state- 
ment to  tho  district  attorney  of  all 
tho  material  facts  hearing  upon  t';o 
guilt  of  plaintitr  of  which  they  had 
knowledge,  ami  which  they  could  liavo 
a3certainc<l  hy  rcasonahlo  diligence, 
and  whether,  in  eomniencin.;  siuli 
prosecution,  tho  defendants  acted  in 
good  faith,  U[)on  tho  advice  of  said 
district  attorney,  aro  ipiestions  fif  f  'ct 
to  bo  determini'd  by  you  from  all  of 
the  evidence  and  eireuinstaneos  in  I'lo 
case.  If  you  believe  fi'om  tlu;  cvid(!:eo 
thatnonoof  the  defendants  made  a  full, 
fair,  and  trutliful  stilement  of  such 
facts  to  tho  district  attorney,  or  that 
they  instituted  the  criminal  proceeil- 
ings  from  a  lixed  determination  of 
their  own,  rather  than  from  ihe  advice 
of  said  district  attorney,  tho  advice  nf 
the  prosocutiug  attorney  would   not 


§  1096 


MALICIOUS   PROSECUTION. 


1882 


sary  that  ho.  shall  have  been  grossly  negligent  in  stating 
them.^  The  act  of  the  defendant  in  carrying  on  an  uu- 
founded  prosecution  will  not  be  excused;  even  where  lio 
was  supported  by  his  attorney's  opinion,  the  latter,  while 


be  a  defense  in  this  action."    On  ap- 
peal,  this  was  held  wrong,  the  court 
saying:  "  In  our  opinion,  this  instruc- 
tion is  erroneous.     One  who  seeks  the 
advice   of  counsel  with  reference  to 
the  commencement  of  a  criminal  prose- 
cution is  bound  to  act  in  good  faith 
in  the  matter.     Unless  he  does  this, 
ho  will  not  bo  protected  from  liability 
on  the  ground  that  he  acted  upon  the 
advice  given  him.     Ho  is  required  to 
make  to  the  counsel  a  full  and  fair 
statement  of  all  the   material    facts 
known  to  him.    If  lie  has  a  reasonable 
ground  for  l)clicving  that  facts  exist 
whicli  would  tend  to  exculpate   the 
accused  from  the  charge,  good  faith 
requires  that  he  shall  either    make 
further    inquiry    with    reference    to 
those  facts,  atul  communicate  the  in- 
formation obtained  to  the  counsel,  or 
that  he  shall  inform  him  of  his  belief 
of  their  existence,  in  order  that  he 
may    investigate    with    reference    to 
them,  and  take  into  account,  in  form- 
ing his  opinion,   the  information  at- 
tained with  reference  to  them.      But 
he  is  not  required  to  do  more  than 
this.     He  is  not  required  to  institute 
a  blind  inquiry  to  ascertain  whether 
facts  exist  which  would  tend  to  the 
exculpation  of  the  party  accused.  But 
if  ho  honestly  believes  tha^  he  is  in 
possession  of  all  the  material  facts, 
and  makes  a  full  and  fair  statement  of 
those  facts  to  the  counsel,  and  acts  in 
good  faith  on  the  advice  given  him,  he 
ought  to  bo  protected.     This,  it  seems 
to  us,  shouhl  bo  the  rule  when  the  ad- 
vice of  private  counsel  is  relied  on. 
But  there  are  more  cogent  reasons  for 
ap])lying  it  Avhere  the  communication 
's  made  to  the  public  prosecutor.     In 
criminal  cases,  that  officer  is  the  rep- 
resentative of  the  state.      He  is  re- 
quired, not  only  to  prosecute  indict- 
ments which  are  found,  but  it  is  his 
duty  to  assist  in  the  investigation  of 
charges  against  individuals  which  are 
brought  to  the  attention  of  the  grand 
jury.      He  is  by  law  made  the  legal 
adviser  of  the  grand  jury.      When^ 


complaint    is    made   to   him    that  a 
public  ofifense   has  been    committed, 
it    is    his    duty    to    investigate    tlie 
charge,  and,  if  ho  ilecms  it  a  matter  of 
sufficient  importance,  to  demand  the 
attention  of  the  grand  jury.    It  is  also 
his  duty  to  have  the  witnesses   sub- 
pcenaed,  and  brought  before  that  body, 
and  he  has  the  ri,<;ht  to  aiipuar  also 
and     assist     in    their     examination. 
Neither  he  nor  the  grand  jury  are 
confined  in  their  investigations  to  the 
witnesses  named  by  tlio  complainant, 
but  they  have  the  jower  to  send  for 
and  examine  any  witnesses  whom  tliey 
have  reason  to  believe  can  give  any 
material     evidence    bearing    on    the 
question  of  the  guilt  of  the  accused. 
We  will  not,  of  course,  be  understood 
as  holding  that  a  party  who  maliciously 
makes  a  groundless  charge  to  the  dis- 
trict attorney,  and  thereby  procures 
the  finding  of  an  indictment,  is  not 
answerable  to  the  one  injured  by  the 
proceeding.     It  woidd,  however,  bo  a 
very  harsh  rule,  and  ono  calculated  to 
discourage    entirely    the    making    of 
complaints  by  private  individuals,  to 
hold  that  one  who  has  acted  on  the 
advice  of  tlie  district  attorney,  given 
upon  a  full  and  fair  statement  of  all 
the  material  facts  which  he  knew,  or 
which  he  had  reasonable  ground  to 
believe,  existed  at  tlie  time,  was  not 
protected  by  the  advice  of  the  attor- 
ney, simply  because  ho  did  not,  before 
making  the  complaint,  learn  of  other 
material    facts    of    the    existence    of 
which  he  might  have  learned  by  rea- 
sonable   inquiry;    yet    that    is    the 
doctrine  of  the  instruction.      The  in- 
struction seems  to  have  the  sujiport 
of  Hilliard  in  his  work  on  torts  (see 
vol.    1,    p.    500),   and    Wait    in    his 
work    on   actions    and   defenses  (sue 
vol.  4,  p.  335).     Tlie  doctrine  of  the 
text  is  supported,    however,   by  but 
few  of  the  cases  cited  in  the  notes  in, 
support  of  it,  and  wo  do  not  believe 
it  is  sound." 
'  Scotteu  V.  Longfellow,  40  Ind.  25^ 


18S3 


REQUISITES   OF   THE    ACTION. 


§  1096 


giving  it,  having  expressed  doubts  of  its  propriety/  and 
where  both  counsel  and  client  act  in  bad  faith,  it  will 
be  no  defense.''  Where  an  attorney  and  client  conspire  to 
institute  a  malicious  prosecution,  the  latter  cannot  justify 
himself  by  the  other's  advice;'  and  a  prosecution  is  ma- 
licious if  instituted  without  probable  cause  and  from  mo- 
tives of  private  interest,  though  under  advice  of  counsel.* 
Good  faith  in  acting  upon  the  counsel's  advice  is  as  requi- 
site as  good  faith  in  obtaining  it.  It  does  not  follow,  in 
every  case,  that  because  a  party  makes  a  full  and  correct 
statement  of  the  case,  as  he  honestly  believes  it,  to  his 
counsel,  and  receives  his  advice  thereon,  and  thereupon 
acts  upon  it,  his  action  is  bona  fide.  It  may  generally  be 
presumed  to  be  so,  but  evidence  that  after  the  advice  he 
was  informed  of  facts  which  should  have  satisfied  him 
that  the  party  whom  he  accused  was  not  guilty  would  de- 
stroy this  presumption.'^ 

If,  acting  under  advice  of  counsel,  a  person  swears  out 
a  warrant  against  another,  and  before  he  causes  his  arrest 
he  ascertains  his  innocence  of  the  charge,  he  is  not  jus- 
tified in  proceeding,  even  though  he  was  protected  by 
professional  advice  in  taking  out  the  warrant.^  If  the 
party  consults  one  attorney,  who  advises  him  to  proceed, 
and  he  al'terwards  receives  from  another  attorney  whom 
ho  consults  advice  of  a  contrary  kind,  the  first  opinion 
will  not  avail  him  as  a  protection.''  And  so  if  he  does  not 
himself  believe  that  he  has  any  ground  for  his  cause  of 


'  Kondrick  v.  Cypert,  10  Humph. 
291. 

-  Center  r.  Spring,  2  Iowa,  393;  Sher- 
burne r.  RoJman,  51  Wis.  474. 

'^  lliuniltoii  V.  Smith,  39  Mich.  222. 

*  Grundy  i\  Hotel  Co.,  38  La.  Ann. 
974. 

*  Cole  V.  Curtis,  16  .vlinn.  182;  Stone 
V.  Swift,  4  Pick.  389;  6  Am.  Dec.  349; 
Center  *'.  Spring,  2  Iowa,  393;  Kiugs- 
Inuy  V.  Garden,  45  N.  Y.  Sup.  Ct. 
224;  Sharpe  v.  Johnston,  76  Mo.  660. 

«  Ash  V.  Marlow,  20  Ohio,  119.     la 


Kansas,  if,  after  the  filing  of  an  ori- 
ginal complaint,  those  who  instituted 
the  prosecution  loam  facts  showing 
the  innocence  of  the  accused,  they  are 
not  liable  for  malicious  prosecution 
for  merely  withholding  sucii  informa- 
tion from  the  prosecuting  attorney,  as 
under  the  statutes  the  case  is  then  ia 
the  hands  of  tlie  attorney;  but  they 
are  liable  if  they  still  insist  uj)on, 
urge,  and  demand  the  prosecution: 
Blunk  V.  11.  R.  Co.,  38  Fed.  Hep.  311. 
'  S'   ^Qus  V.  Fassett,  27  Me.  206. 


1096 


MALICIOUS   PROSECUTION. 


1884 


action,  the  opinion  of  a  lawyer  that  he  has  is  irrelevant.^ 
The  advice  of  counsel  will  protect  the  defendant  only 
where  the  questions  submitted  to  him  are  questions  of 
law,  or  questions  involving  some  legal  principle.  Where 
they  are  simply  questions  of  fact  or  inference,  the  case  is 
different;  for  the  attorney  is,  as  to  these,  no  more  capable 
of  advising  than  his  client  is.^  The  advice  must  be  given 
before  the  proceedings  are  commenced.*  But  evidence 
tha*  the  defendant,  before  making  the  complaint  and  tak- 
ing out  the  warrant  against  the  plaintiff,  went  to  consult 
his  attorney,  but  did  not  find  him,  and  before  the  arrest 
and  trial  did  consult  him,  and  followed  his  advice  in  the 
prosecution,  U  competent  upon  the  question  of  malice,  and 
also  upon  that  of  damages.^ 

The  advice,  to  be  a  protection,  must  be  that  of  one  duly 
accredited  and  licensed  ])y  the  courts  as  an  attorney  or 
counselor  at  law.°  The  advice  of  a  justice  of  the  peace  or 
police  justice  is  no  protection;*  nor  of  one  who,  though 


^Ravenga  v.  Mackintosh,  2  Bam.  & 
C.  C9.S. 

2  Laird  v.  Taylor,  C6  Barb.  139. 

•*  "I  tliiuk  it  ought  not  to  bo  per- 
mitted to  any  person,  after  the  eoin- 
mencemc'.it  of  liis  suit,  to  repel  the 
imputation  of  malice,  or  prove  prob- 
able cause  by  subsequently  getting 
the  opinions  of  counsel  in  his  t.ivor. 
What  would  this  be  but  to  encourage 
unfounded  suits,  and  to  enable  jiartics 
to  get  rid  of  tlic  effects  of  their  own 
misconduct  by  matters  c:  pout  faclof 
What  constitutes  probable  cause  of 
action  is,  wlien  the  facts  are  given, 
matter  of  law,  upon  which  the  court  are 
to  decide;  and  it  cannot  be  proper  to 
introduce  certificates  of  counsel  to  es- 
tablish what  tho  law  is.  If  the  party 
acts  upon  the  advice  of  counsel,  how- 
ever mistaken  in  commencing  his  suit, 
and  is  honestly  misled,  there  is  some 
ground  to  excuse  liis  act.  But  when 
he  has  gone  on  without  such  advice, 
and  in  point  of  law  has  no  probable 
cause  of  action,  it  is,  I  think,  conced- 
ing too  much  to  allow  the  subsequent 
opinion  of  counsel  to  change  the  legal 


rights  of   ';he  parties":  Justice  Story 
in  Blunt  %>.  Little,  3  Mason,  102. 

*  Hopkins  v.  McGillicuddy,  69  ]\Ie. 
273. 

*  Murphy  v.  Larson,  77  111.  1 72; 
Stanton  v.  Hart,  27  Mich.  5;{9;  01m- 
stead  1'.  Partridge,  IG  Gray,  381;  IJcal 
V.  Robeson,  8  Ired.  270;  Straus  /■. 
Young,  36  Md.  246;  Burgett  v.  Iliir- 
gett,  43  Ind.  78;  Williama  v.  Van- 
meter,  8  Mo.  339;  41  Am.  Dec.  644; 
Sutton  V.  McConnell,  46  Wis.  2G'.1; 
Brooks  V.  Warwick,  2  Stark.  3S9.  Jle 
should  be  a  "practicing  attorney  ': 
Burgett  V.  Burgett,  43  Ind.  78.  And 
a  licensed  attorney  is  presumed  to  !jo 
competent  and  qualified  to  give  the 
proper  advice:  Home  v.  Sullivan,  83 
111.  30.  But  would  this  be  so  in  a 
jurisdiction  where  citizenship  and 
good  moral  character  are  the  rnly 
requisites  to  admission  to  the  bar? 
See  Stevens  v.  Fassett,  27  Me.  266. 

*  Sutton  V.  McConnell,  4.5  Wis.  '2i)9; 
Olmstead  v.  Partridge,  16  Gray,  .'iSl; 
Brooks  V.  Warwick,  2  Stark.  ."iSO; 
Straus  w.  Young,  36  Md.  246;  Wil- 
liams V,   Vanmeter,   8    Mo.  339;  41 


1SS5 


REQUISITES    OP   THE    ACTION. 


§  1096 


holding  himself  out  as  an  attorney,  and  practicing  in 
justice  courts,  is  not  a  licensed  attorney;*  nor  of  a  detec- 
tivo,"  or  police-officer.'' 

But  in  Pennsylvania,  the  advice  of  a  city  alderman,  by 
virtue  of  his  office  a  conservator  of  the  peace,  has  been 
held  to  protect."*    The  advice  of  an  attorney  who  was  per- 


Ani.  Dec.  644;  Burgett  v.  Burgett,  43 
Iiil.  7S;  Potter  v.  Casterliae,  41  N.  J. 
L.  J-J;  Brobst  ,;.  Ruff,  100  Pa.  St.  91; 
4,')  Am.  llcp.  358;  Gee  v.  Culver,  12 
Or.  2-J8;  Dolbo  v.  Norton,  22  Kau. 
101. 

'  Murphy  v.  Larson,  77  111.  172; 
St:uiton  i\  Hart,  27  Mich.  539,  the 
court  sayiug:  "Law  allows  honest 
aitiiin,  upon  the  advice  of  counsel  who 
ha\o  l)oen  fully  informed  on  the  facts, 
to  lie  a  complete  justification,  upon 
til"  solo  ground  that  a  person  has  done 
all  lie  could  bo  expected  to  do  to 
cn.iljlo  him  to  act  safely.  But  it  is 
uot  the  policy  of  the  law  to  permit 
iniidccnt  men  to  be  subjected  to  false 
cli:'.igus  and  unfounded  arrests,  and  a 

1)cisi)n  who  a.ssume3  to  prosecute  is 
)iiiiiiil  to  use  all  reasonable  means  to 
avoid  committing  such  a  grievance. 
K\  t  ry  man  of  common  information  is 
presumed  to  know  that  it  is  not  safe 
111  matters  of  iinporjjance  to  trust  to 
the  legal  opinions  of  any  but  recog- 
nized lawyers;  and  no  matter  is  of 
inore  legal  importance  than  private 
reputation  and  liberty.  When  a  per- 
son resorts  to  the  best  means  in  liis 
power  for  information,  it  will  be  such 
a  proof  of  honesty  as  would  disprove 
malice,  and  operate  as  a  defense  pro- 
portionate to  liis  diligence.  But  there 
IS  no  respectable  authority  for  Iiolding 
that  advice  from  any  but  a  qualified 
lawyer  is  of  itself  an.  answer  to  the 
cliarge  of  malicious  prosecution, 
however  honest  the  course  of  the 
jjarly  may  have  been  in  seeking  for  it. 
iSueh  advice  bears  upon  probable 
cause,  while  the  other  excuses  go  to 
(lis|)rove  malice.  It  would  be  very 
dangerous  to  relax  the  rules  on  this 
sulijeet.  Tiiere  can  never  bo  any 
ditiieulty  in  finding  professional  ad- 
viseis  under  ordinary  circumstances. 
Auil  whore  the  prosecution  complained 
of  i.s  criminal,  and  uot  civil,  there  is 


still  less  cause  for  removing  any  safe- 
guard against  opi)rcssioa  and  vexatious 
proceedings.  Thi.s  rule  originated  in 
England,  where  there  is  no  public 
pro.secutor,  and  where  all  complaints 
must  u.suuljy  be  matle  by  private  par- 
ties. Tliey  wero  couipellcd  to  employ 
counsel  to  prosecute,  antl  it  would 
have  been  unju.st  to  compel  them  to 
do  more  than  use  proper  diligence  and 
fairness  in  choosing  and  instructing 
them.  But  under  our  sj'stem  all 
prcsecutions  arc  i)ut  under  official 
control,  and  a  principal  reason  for 
this  was  the  abuse  of  private  prosecu- 
tions, which  are  very  apt  to  be  set  on 
foot  for  private  purposes  rather  than 
for  the  public  good.  It  can  rarcJy  hap- 
pen that  in  serious  cases  where  there 
is  any  such  doul)t  as  would  render  it 
prudent  to  seek  advice  before  acting, 
it  will  not  be  easy  to  get  access  to  the 
l)rosecutii'g  attorney.  The  very  fact 
that  a  person  is  in  doubt  should  teach 
him  more  caution,  and  lead  him  to 
communicate  with  the  proper  author- 
ities, and  put  the  care  of  the  pro.secu- 
tion  M'herc  it  legally  belongs.  There 
is  no  need  in  such  cases  tf)  rely  o;i  ir- 
regular advisers,  and  it  is  a  practice 
not  to  be  favored. " 

*  Breitmesser  v.  Stier,  13  Phila. 
80. 

^  Coleman  v.  Heurich,  2  Mackey, 
ISO. 

'Thomas  v.  Painter,  10  Phila.  409; 
Rosenstoin  v.  Foigel,  G  Phila.  .")32.  la 
Laugldin  v.  Clawson,  27  I'a.  St.  330, 
the  court  say:  "If  the  officers  of  the 
state,  who  are  appoiatul  on  account 
of  their  legal  learning,  consider  that  a 
given  state  of  facia  ii  sutlicient  evi- 
dence of  probalilo  eau^;i>,  how  can  the 
private  citizen  li.'  siid  to  be  in  fault 
in  acting  upon  such  facts,  and  how  can 
the  state  condemn  him  to  damages  for 
so  doing  ?  To  decide  so  is  to  use  the 
machinery  of  government  as  a  trap  to 


§  1096 


MALICIOUS   PROSECUTION. 


1880 


sonally  interested  in  the  subject-matter  is  no  defense.*  h\ 
Illinois  it  is  laid  dov/n  that  the  attorney  must  have  been 
in  good  standing.  Nor  does  the  fact  that  he  was  state's 
attorney  necessarily  show  him  to  have  been  in  good  stand, 
ing,  where  it  appears  that  he  was  intemperate,  etc.^ 

Illustrations.  —  Plaintiff  had  been  in  the  employment  of 
the  defendants  as  cashier  for  four  years.     A  charge  was  made 
against  him  of  a  debt  due  from  his  brother,  and  which  the  de- 
fendants claimed  was  to  be  paid  by  the  plaintiff,  and  which  they 
sought  to  sot  off  against  his  salary.    He  denied  any  such  agree- 
ment, and  on  leaving  the  concern  appropriated  to  the  payment 
of  salary  due  him  the  sum  of  $166  out  of  moneys  of  the  firm  in 
his  hands.     There  was  a  rule  of  the  house  that  sums  over  five 
dollars  paid  to  clerks  should  be  paid  only  on  checks  drawn  by 
one  of  the  partners,  but  the  plaintiff  was  not  considered  a  clerk 
within  this  rule,  and  the  rule  even  as  to  clerks  was  frequently 
violated.     The  defendants  had  the  plaintiff  arrested  for  en> 
bezzlement,  after  consulting  one  B,  their  attorney;  but  the}'  did 
not,  among  other  things,  inform  B  either  that  the  plaintiff  was 
not  considered  an  ordinary  clerk,  or  that  the  rule  had  been  often 
violated.     Held,  that  these  facts  not  having  been  disclosed  to 
the  attorney,  his  advice  was  no  defense:    Ross  v.  Inness,  35  111. 
487.    A  dealer  in  railroad  tickets  sold  as  an  unlimited  ticket  an 
excursion  ticket,  marked  on  the  ticket  itself  and  on  the  coupons 
as  "  not  good  to  stop  off,"  and  not  good  after  a  certain  date, 
which  date  was  erased.    There  had  been  a  number  of  instances 
before  in  which  the  same  dealer  had  sold  altered  and  spurious 
tickets.     An  officer  of  the  company  consulted  the  company's 
lawyer  about  it,  and  he  took  him  to  the  state's  attorney,  who 
said  that  it  was  a  case  for  the  grand  jury.     Held,  that  neither 
the  officer  nor  the  company  was  liable  for  malicious  prosecu- 
tion on  account  of  a  prosecution  thereupon  instituted,  although 
he  did  not  report  to  the  state's  attorney  the  result  of  the  issu- 
ance of  a  search-warrant  upon  which  the  dealer's  office  was 
searched,  but  no  spurious  or  altered  tickets  found:   Thclin  v. 
Durscy,  59  Md.  539.      The  district  attorney  testified  that  he 
told  defendant  that  he  did  not  think  he  could  convict,  and  that 
he  had  not  a  very  good  case.     Another  witness  said  to  defend- 
ant that  he  could  not  do  anything  with  plaintiff,  to  which  de- 
fendant replied  that  plaintiff  had  taken  sides  against  him,  and 


ensnare  those  who  trust  in  government 
in  such  matturs,  and  who  ought  to 
trust  in  it.  If  such  officers  make  a 
mistake,  it  is  an  error  of  government 
itself,  and  goveruiucut  cannot  allow 


the  citizen  to  suffer  for  his  trust  in  its 
proper  functionaries." 

'  White  V.  Carr,  71  Me.  555;  36  Am 
Rep.  353. 

2  Roy  V.  Goings,  112  111.  656. 


1887 


REQUISITES   OP  THE   ACTION. 


§  1007, 


that  he  would  "  set  him  up  for  his  meanness."  Defendant  tes- 
tified that  other  lawyers  whom  he  consulted  had  advised  him 
tliat  he  could  maintain  the  prosecution,  but  none  of  them  were 
produced  as  witnesses.  Held,  that  a  verdict  for  plaintiff  was 
proper:    Vann  v.  McCrcary,  Cal.  1889. 

§  1097.  Malice  also  Essential  —  Malice  and  want  of 
probable  cause  must  both  be  shown.^  What  is  malice  in 
this  connection?  "  The  malice  necessary  to  be  shown  in 
order  to  maintain  this  action  is  not  necessarily  revenge, 
or  other  base  and  malignant  passion.  Whatever  is  done 
willfully  and  purposely,  if  it  be  at  the  same  time  wrong 
and  unlawful,  and  that  known  to  the  party,  is  in  legal 
contemplation  malicious.  That  which  is  done  contrary 
to  one's  own  conviction  of  duty,  or  with  a  willful  disre- 
gard of  the  rights  of  others,  whether  it  bo  to  compass 
some  lawful  end  or  to  do  a  wrong  and  unlawful  act,  know- 
ing it  to  be  such,  constitutes  legal  malice."^  Where  a 
wrongful  act  is  done  with  the  intention  of  bringing  about 


'  Bell  V.  Graham,  1  Nott  &  McC. 
27S;  9  Am.  Dec.  CS7;  Ulmer  v.  Le- 
laiul,  1  Mc.  135;  10  Am.  Dec.  48;  Wil- 
liams r.  Hunter,  3  Hawks,  545;  14  Am. 
Dec.  597;  Adams  v.  Lisher,  3  Blackf. 
241;  25  Am.  Dec.  102;  Leidig  v.  Raw- 
bon,  1  Scam.  272;  29  Am.  Dec.  354; 
Grant  v.  Deuel,  3  Rob.  (La.)  17;  38 
Am.  Dec.  228;  Williams  ?'.  Vanincter,  8 
Mo.  337;  41  Am.  Dec.  G44;  Young  v. 
Gregorie,  3  Call,  440;  2  Am.  Dec.  556; 
Plummer  r.  frreene,  3  Hawks,  06;  14 
Am.  Dec.  572;  Travis  v.  Smith,  1  Pa. 
St.  234;  44  Am.  Dec.  125;  Griffin  v. 
Cliuhb,  7  Tex.  003;  58  Am.  Dec.  85; 
Sliafer  v.  Loucks,  58  Barb.  426;  Bur- 
nap  n  Albett,  Tauey,  244;  Wilson  v. 
King,  39  N.  Y.  Gup.  Ct.  384;  Gourgues 
r.  Howard,  27  La.  Ann.  339;  Smith  v. 
Zont,  59  Ind.  302:  Evana  v.  Thomp- 
son, 12  Heisk.  534;  Cottrell  v.  Rich- 
mond, 5  Mo.  App.  588;  Bishop  v.  Bell, 
2  111.  App.  551;  Anderson  r.  Coleman, 
5.3  Cal.  188;  Russell  v.  Deer,  7  HI. 
App.  181;  Turner  v.  O'Brien,  11  Neb. 
108;  Vinal  r.  Cove,  18  W.  Va.  1;  Mur- 
phy ?".  Martin,  58  Wis.  270;  Porter  v. 
White,  5  Mackey,  180;  Stone  v.  Ste- 
vens, 12  Conn.  219;  30  Am.  Dec.  611; 


Maloney  t;.  Doane,  15  La.  278;  35  Am. 
Dec.  204;  Yocutn  r.  Polly,  1  B.  Mon. 
358;  30  Am.  Dec.  583;  Clements  v. 
Odorless  etc.  Co.,  07  Md.  401;  1  Am. 
St.  Rep.  409;   Barton  c.  Kavanaugh, 

12  La.  Ann.  332;  Weston  i\  Beenian, 
27  L.  J.  Ex.  57;  Boston  v.  Southard, 
10  N.  Y.  230;  Fo.sliay  v.  Ferguson,  2 
Denio,  617;  Diet/  '•.  Lanstitt,  03  Pa. 
St.  234;  Cook  v.  Walker,  30  (Ja.  519; 
Willis  i\  Knox,  5  S.  C.  474;  Gla/o  r. 
Whitley,  5  Or.  104;  Dickinson  r.  May- 
nard,  20  La.  Ann.  0(i;  Wheeler  ?•.  Nes- 
bitt,  24  How.  544;  Horn  i:  Boon.  3 
Strob.  307;  Mitchinson  r.  Cross,  ."8 
HI.  300;  Ames  v.  Snider,  09  111.  3o.5; 
Landa  v.  Obert,  45  Tex.  539;  Mowry 
V.  Whipple,  8  R.  L  300;  Moore  v.  San- 
borin,  42  Mo.  490;  Tliompson  r.  Luin- 
ley,  50  How.  Pr.  105;  Richardson  /•. 
Vutue,  2  Hun,  208;  .Jacks  r.  Stimpson, 

13  HI.  701;  Wood  r.  Weir,  5  B.  Mon. 
544;  Wells  v.  Noyes,  12  Pick.  S24; 
C!ollard  v.  Gay,  1  tcx.  494. 

■'  Shaw,  C.  J.,  in  Wells  v.  Noyes,  12 
Pick.  324;  Biirrow  v.  Ma.son,  31  Vt. 
189;  Page  v.  Cushing,  38  Me.  523; 
Harpham  v.  Whitney,  77  111.  32;  Pul- 
len  V.  Glidden,  06  Me.  202. 


^§  1097 


MALICIOUS   PROSECUTION. 


1888 


the  consequences  naturally  flowing  from  it  to  the  injury 
of  another,  the  act  is  malicious  in  law;  and  it  is  no  an- 
swer  to  a  civil  action  that  the  party  doing  the  wrongful 
act  was  actuated  by  his  own  interest,  without  any  per- 
sonal  desire  to  injure  the  other  party,  or  even  acted 
under  a  mistaken  sense  of  duty.  To  indict  an  innocent 
man  on  a  charge  false  to  the  knowledge  of  the  party  pre- 
ferring it  is  malicious,  no  matter  what  may  have  been 
the  original  motive.*  In  Foshay  v.  Ferguson,^  the  plaintiff, 
who  was  driving  cattle  to  market,  had,  on  passing  the  de- 
fendant's farm,  received  into  his  drove  two  cattle  belong, 
ing  to  the  latter,  and  had  proceeded  on  his  journey  some 
miles  when  he  was  overtaken  by  the  defendant,  who 
charged  him  with  the  theft.  He  denied  it,  but  the  next 
day  settled  by  paying  the  defendant  for  them.  The  latter 
then  went  home,  and  was  told  by  one  G.  that  the  plaintiff 
had  driven  off  some  of  his  cattle.  Both  agreed  that  there 
was  something  wrong  about  it.  Subsequently  the  plaintiff 
brought  two  suits  against  the  defendant, —  one  for  slander 
in  charging  him  with  stealing  the  cattle,  the  other  to  set 
aside  the  settlement.  The  defendant  then  went  before 
the  grand  jury  and  had  him  indicted  for  larceny.  In  an 
action  for  malicious  prosecution,  the  jury  found  for  the 
plaintiff,  and  also  that  the  defendant  had  acted  mali- 
ciously in  making  the  complaint.  Nevertheless,  it  was 
held  that  the  verdict  was  wrong.^     Where  one  unlawfully 


^  Cocklmrn,  C.  J.,  in  Fitzjohn  v, 
Mackinder,  9  Com.  B.,  N.  S.,  505.  "A 
man,  from  a  malicious  motive,  may 
take  up  a  prosecution  for  real  guilt, 
or  he  may,  from  circumstances  which 
he  really  believes,  proceed  upon  fip- 

f>arent  guilt,  and  in  neither  case  is  he 
iable  to  this  kind  of  action":  John- 
stone )'.  Sutton,  1  Term  Hep.  545. 

2  2  Denio,  617. 

3  "  There  was  evidence  enough," 
said  Bronson,  C.  J.,  "to  wai'rant  the 
jury  in  finding  that  the  defendant 
set  the  prosecution   in   motion  from 


not  enough  without  showing  also  the 
want    of     probable     caup-i. 
The  defendant,  at  the  tiiii'^  '         ■■"!, 
before   the   grand    jury,    h..  :^ 

grounds  for  believing  tha?<  ti  •  (•  ^  •■.iif 
had  stolen  the  cattle;  and  sr  c  as; 
appears,  not  a  single  fact  tu  then 
come  to  his  knowledge  which  was  cal- 
culated to  induce  a  different  opinion. 
Although  the  plaintiff  was  in  facS  in- 
nocent, there  would  bo  no  color  for 
this  action  if  it  were  not  for  the  fact 
that  the  defendant  settled  the  matter 
with  the  plaintiff  instead  of  proceed- 


a  bad   motive.     But    all    tlie    books    ing  against  him  for  the  supposed  of- 
agree  that  proof  of  express  malice  is    fense.    If  the  parties  iuteuded  that 


1SS9 


REQUISITES   OF   THE    ACTION. 


1098 


invading  another's  close  causes  the  occupant's  arrest  for 
forcibly  defending  his  possession,  malice  may  be  pre- 
sumed.^ In  an  action  for  malicious  arrest  on  civil  pro- 
cess, neither  express  malice  nor  actual  damages  need  be 
proved.'' 

Illustrations. —  Defendant  caused  the  arrest  of  plaintiff 
without  probable  cause,  but  not  from  any  actual  ill-will  towards 
him,  or  any  specific  desire  to  vex  or  annoy  him,  but  for  the 
purpose  of  finding  out  who  had  forged  a  certain  note  in  his 
niuue,  then  in  plaintiff's  possession,  and  which  he  claimed  to 
be  valid  and  to  have  been  acquired  in  good  faith.  Held,  that 
the  arrest  was  malicious:  Johnson  v.  Ehberts,  6  Saw.  538.  An 
ofllccr  attached  goods  in  A's  store,  and  locked  up  the  store. 
A  and  B  broke  into  the  store  in  the  night-time  and  refused  to 
leave,  whereupon  the  officer  complained  of  them  for  breaking 
and  entering  with  intent  to  steal.  Held,  that  a  jury  might  find 
that  the  prosecution  was  malicious:  Bobsin  v.  Kingsbury,  138 
Mass.  538. 


§  1098.  Evidence  to  Show  Malice.  —  Malice,  it  is  laid 
down  in  a  number  of  cases,  may  be  inferred  from  want 
of  probable  cause.*     Where  there  were  no  circumstances 


the  settlement  should  extend  so  far  as 
to  cover  up  and  prevent  a  criminal 
prosecution,  the  defeiitlant  was  guilty 
of  compounding  a  felony;  and  the  fact 
tliat  lie  made  no  complaint  until  the 
plaintiff  commenced  the  two  suits 
against  him  goes  far  to  show  that  he 
was  obnoxious  to  that  cliarge,  and 
that  he  was  governed  more  by  his  own 
interest  than  by  a  proper  regard  to 
the  cause  of  public  justice.  But  how- 
ever culpable  the  defendant  may  have 
beeu  for  neglecting  his  duty  to  the 
public,  that  cannot  be  made  the  foun- 
dation of  a  private  action  by  the 
tlaiiititf.  Although  the  defendant  may 
Lave  agreed  not  to  prosecute,  and  the 
complaint  may  have  been  afterwartls 
made  from  a  malicious  feeling  tow^ards 
the  plaintiff,  still  the  fact  of  probable 
cause  remains,  and  so  long  as  it  exists, 
it  is  a  complete  defense.  There  is 
enough  iu  the  defendant's  conduct  to 
iuiluce  a  rigid  scrutiny  of  the  defense. 
But  if  upon  such  scrutiny  it  appear 
that  he  had  reasonable  grounds  for  be- 
lieving the  plaiutiff  guilty,  and  there 
U9 


is  nothing  to  show  that  he  did  not 
actually  entertain  that  belief,  there  is 
no  principle  upon  which  the  action 
can  be  supported." 

'  Casebeer  v.  Rice,  18  Neb.  203. 

■^  Hogg  r.  Pinckney,  IG  S.  C.  .387. 

'  Barton  v.  Kavanaugh,  12  La.  Ann. 

332;  Stone  v.  Stevens,  12  Conn.  219; 

30   Am.    Dec.  Oil;  Horn  v.    Boon,  3 

Strob.    307;    Ames  v.  Snider,   09  111. 

300; 
490; 
Pr. 
439; 
.S21; 
Cal- 


370;  Mowry  v.  Whipple,  8  R.  I. 
Moore  v.  Sanborin,  42  Mo. 
Thompson  v.  Lumley,  50  How. 
105;  Merriam  v.  Mitchell,  13  Me. 
HoUiday  v.  Sterling,  02  Mo. 
Newell  r.  Downs,  8  Blackf.  523; 
lahan  v.  Caffarata,  39  Mo.  136;  Straus 
V.  Young,  36  Md,  246;  Harpham  v, 
Whitney,  77  111.  32;  Wheeler  v.  Nes- 
bitt,  24  How.  544;  Bell  v.  Graham,  1 
Nott&  McC.  278;  9  Am.  Dec.087;  Yo- 
cum  V.  Polly,  1  B.  Mon.  358;  36  Am. 
Dec.  583;  Williams  v.  Vannieter,  8 
Mo.  339;  41  Am.  Dec.  044;  Griffin  v. 
Chubb,  7  Tex.  603;  58  Am.  Dec.  85; 
Levy  V.  Brannan,  39  Cal.  485;  Burnap 
V.  Albert,^  Taney,.  244;  Vinal  v.  Cove, 


§  1008 


MALICIOUS   PROSECUTION. 


1890 


connoctod  with  the  transaction  out  of  which  the  prosecu- 
tion iiroso  which  ought  to  have  induced  a  reasoiuible 
man  to  believe  the  phuntiff  guilty,  and  to  undertake  tho 
prosecution,  then  there  is  no  reasonable  cause,  and  tlio 
jury  may  infer  that  the  prosecution  was  malicious.*  But 
it  di)(.s  not  follow  that  because  there  was  a  want  of  prob- 
able oiiuse  malice  must  always  be  inferred.  If  this  were 
so, —  if  want  of  probable  cause  was  taken  to  prove  malice 
under  all  circumstances, —  it  would  be  absurd  to  say  that 
the  ,t:ist  of  the  action  was  want  of  probable  cause  and 
malice;  for  the  former  alone  would  be  all  that  was  re- 
quired. It  should,  therefore,  be  said  that  want  of  prob- 
able cause  for  the  prosecution  does  not  necessarily  imply 
malice."     It  is,  therefore,  error  to  instruct  the  jury  that  a 

pear,  if  he  knew  that  the  person 
charged  was  not  guilty,  tho  conchision 
would  unavoidably  be,  tliat  he  had  no 
probable  cause,  and  further,  that  liu 
was  actuated  by  malice,  —  the  intention 
to  use  tiio  privilege  of  prosecuting  for 
a  wrongful  purpose.  But  on  tho  othtr 
hand,  there  are  many  other  cases  in 
which  a  person  may  prosecute  ai\othor, 
without  sufficient  pnnm  /uric  evi- 
dence, without  a  bad  motive,  iind 
from  upright  views  of  enforcing  pul)lic 
justice.  It  often  requires  i)rofessional 
skill  to  connect  and  weigh  the  evi- 
dence, and  give  opposing  probabilities 
their  proper  effect.  Ordinary  persons 
may  honestly  err  in  deducing  conclu- 
sions from  circumstances  indicative  of 
the  guilt  or  innocence  of  tho  accused 
person.  For  it  is  a  nice  point,  on  wliich 
even  judges  differ,  whether  in  a  par- 
ticular case  there  was  or  was  not  prob- 
able cause.  If,  therefore,  a  prosecutor 


18  W.  \'a.  1;  Decoux  V.  Lieux,  33  La. 
Ann.  :il»'J;  Block  v.  Meyers,  33  La. 
Ana.  77ti;  Murphy  v.  Hobbs,  7  Col. 
.641 ;  4!)  Am.  Rep.  3<56;  Heap  v.  Piirrish, 
104  lad.  •;G;  Roy  v. Goings,  112111.  GoG. 

'  Cm. per  I'.  Utterbach,  37  Md.  2S3. 

''  Taagburn  v.  Bull,  1  Wund,  345; 
Merriiun  v.  Mitchell,  13  Me.  439;  29 
Am.  Doe.  514;  Stirckler  v.  Greer,  95 
lad.  r)!)ii;  Mowry  v.  Whipple,  8  R.  I. 
3G0;  I'aukett  v.  Livermore,  5  Iowa, 
277;  Hiirkrader  r.  Moore,  44  Cal.  144; 
Cooper  r.  Utterbach,  37  Md.  282; 
Dietz  r.  Langfitt,  G3  Pa.  234;  Harpham 
V.  Whitney,  77  111.  32;  Holliday  v. 
Sterling;,  G2  Mo.  321 ;  Levy  v.  Brannan, 
39  Cal.  485;  Hirschi  v.  Mettelman, 
7  111.  App.  112;  Comisky  v.  Breen, 
7  111.  Ai)p.  369;  Greer  v.  Whitfield,  4 
Lea,  8.").  Said  RuflBn,  C.  J.,  in  an 
early  North  Carolina  case;  "There 
may  be  many  cases  in  which  the  in- 
fluence of  such  bad  motive  may  be  al- 
most inesistible,  from  the  absence  of    erred  in  that  point,  and  yet  was  aljle 


probaljlo  cause.  The  grounds  of  sus- 
picion may  be  so  light  as  to  satisfy  the 
mind  that  the  prosecutor  could  not 
expect  the  accused  to  be  convicted  on 
them,  and  that  they  were  used  as  a 
pretense,  as  furnishing  the  opportu- 
nity, under  the  semblance  of  aiding 


to  show  the  honesty  of  his  error,  lie 
ought  not  to  be  liable  in  damages. 
Such  honesty  may  be  established  in  a 
variety  of  ways;  as  fronx  friendly  re- 
lations between  the  parties,  or  a  re- 
luctance to  institute  the  prosecution, 
except  apparently  as  a  matter  of  duty 


in  the  execution  of  public  justice,  to  or  from  the  near  approach  of  circum- 

gratify  private  ill-wdl.     Again,  how-  stances  to  tho  constitution  of  i)iobal)le 

ever  giave  the  circumstances  of  sus-  cause,  though  not  coming  up  to  it,  or 

picion  may  in  themselves  appear,  yet  any  other  evidence  of  the  actual  con- 

if  the  prosecutor  be  aware  that  any  siderations      which     prompted     the 

that  arc  material  be  not  as  they  ap-  charge,  ,  Hence  it  has  been  properly 


1800 


1801 


REQUISITES   OF   THE   ACTION. 


§  1003 


secu- 
luiblc 
:e  the 
d  the 
But 
proli- 
3  were 
malice 
.y  that 
se  ami 
vas  re- 


wrongful  charge  made  without  probable  cause  is  mali- 
cious per  se}  But  though  malice  cannot  be  inferred  from 
want  of  probable  cause,  it  may  be  inferred  from  the  same 
facts  which  go  to  establish  want  of  probable  cause,  and 
this  inference  is  one  of  law.'^  Malice  cannot  be  implied 
where  probable  cause  exists.' 

The  discontinuance  of  an  arrest  made  in  a  civil  suit  is 
evidence  of  malice.*  So  is  the  carrying  on  of  a  prosecu- 
tion "  wantonly,"  and  for  no  just  purpose;^  or  setting  the 
criminal  law  in  motion  against  another,  knowing  that 
there  is  no  ground  for  it;*  or  exhibiting  zeal  and  activity 
in  conducting  the  prosecution;'  or  a  long  delay  in  mak- 
ing the  complaint;'  or  the  willful  over-statement  of  the 
amount  of  stolen  property  in  a  complaint  for  larceny;"  or 
the  discharge  of  the  accused  by  the  examining  magistrate, 
or  the  ignoring  of  the  indictment  by  the  grand  jury;'"  or 
commencing  a  criminal  prosecution  for  the  purpose  of 
collecting  a  private  claim;"  or  where  the  prosecutor  acts 
rashly,  wantonly,  or  wickedly  in  charging  another  with 
a  crime  of  which  the  latter  is  innocent;  ^^  or  commencing 

saiil  that  malice  may  be  inferred  from 
the  want  of  probable  cause.  It  is 
equally  apparent  that  it  is  not  neces- 
sarily to  be  inferred  therefrom.  On 
tiie  contrary,  it  must  in  every  case  be 
properly  an  inquiry  for  the  jury,  as  to 
the  actual  fact,  under  explanations 
from  the  court.  If  it  were  not  so, 
it  should  be  said  at  once  that  the  ac- 
tion lies  for  a  prosecution  without 
probable  cause,  for  it  is  obviously  itlle 
to  add  that  there  must  also  be  malice 
ill  the  prosecutor,  if  the  want  of  prob- 
able cause  proves  malice.  The  law 
draws  no  such  presumption;  for  though 
it  often  might  be  true,  it  would  often 
he  untrue  in  point  of  fact":  Bell  v. 
Poarcy,  5  Ired.  83;  Ewing  v.  Sanford, 
19  Ala.  G05. 

'  Harkrader  v.  Moore,  44  Cal.  144. 

2  Shaipe  V.  Johnston,  76  Mo.  G60. 

'  Kaufman  v.  Wicks,  62  Tex.  234. 

'BurnhansiJ.  Sanford,  19  Wend.  417; 
Green  /•.  Cochran,  43  Iowa,  544. 

*  Kerr  v.  Workman,  Addis.  270. 

*  Stevens  v.  R.  R.  Co.,  10  Ex.  356. 


'  Straus  V.  Young,  36  Md.  246. 
*  United     States    v.    McHenry, 


6 


Blatchf.  503. 

*  Olmstead  v.  Partridge,  16  Cxray, 
381 ;  Munns  v.  Dupont,  3  Wash.  C.  C. 
31.  The  offense  charged  in  the  crim- 
inal  complaint  having  been  the  larceny 
of  a  water-wheel  of  the  value  of  three 
hundred  dollars,  evidence  that  such 
wheel  was  in  fact  worth  only  from  two 
dollars  to  five  dollars  is  admissible 
as  tending  to  show  malice;  Wood- 
worth  V.  Mills,  61  Wis.  44;  50  Am. 
Rep.  135. 

"*  This  is  evidence  going  to  show  the 
want  of  probable  cause.  And  from 
this,  too,  malice  may  be  inferred: 
Sappington  v.  Watson,  50  Mo.  83. 

>i  Gallaway  v.  Burr,  32  Mich.  3.32; 
Kimball  v.  Bates,  50  Me.  308;  Brooks 
V.  Warwick,  2  Stark.  393;  Schofield 
V.  Ferrers,  47  Pa.  St.  194;  Ross  v, 
Langworthy,  13  Neb.  492. 

'^  Travis  v.  Smith,  1  Pa.  St.  234;  44 
Am.  Dec.  125. 


rxyrwJvTl^w 


1098 


MALICIOUS   PROSECUTION. 


1892 


successive  suits  by  defendant  on  the  same  groundless 
claim;*  or  where  the  prosecutor's  information  was  obtained 
from  a  discharged  convict  then  under  criminal  accu- 
tiition;  where  the  source  of  information  was  not  disclosed 
to  the  magistrate  from  whom  the  warrant  was  obtained; 
where  the  arrest  was  made  in  the  night-time,  defendant 
being  present;  and  where  the  prosecution  was  voluntarily 
abandoned;"  or  where  M.  procured  an  indictment  against 
B.  for  perjury  in  making  an  affidavit  that  M.  was  insol- 
vent,  in  a  suit  wherein  M.  had  signed  a  bond  for  costs, 
knowing,  or  having  good  reason  to  b'^lieve,  the  affidavit 
to  be  true,  from  his  embarrassed  circumstances  finan- 
cially;* or  where  the  defendant  deprived  the  plaintiff  of 
his  means  of  exculpation,  and  then  prosecuted  him 
criminally/ 

But  malice  cannot  be  inferred  from  employment  of 
counsel  to  prosecute  the  case.*  The  purchase  of  a  nego- 
tiable promissory  note  has  no  tendency  to  prove  a 
wrongful  motive  in  procuring  an  unlawful  arrest  in  an 
action  afterwards  brought  thereon."  The  malice  of  the 
defendant  against  persons  other  than  the  plaintiff  is 
irrelevant.^  Malice  cannot  be  shown  by  the  opinion  of 
persons  at  the  trial  that  the  defendant  appeared  vindic- 
tive while  on  the  stand.*  Although  a  common  report  that 
the  plaintiff  had  committed  the  alleged  crime  is  not  of  itself 
sufficient  to  show  probable  cause,  it  may,  with  other  cir- 
cumstances, tend  to  negative  malice,  and  is  admissible  in 
the  defendant's  behalf.^  Declarations  of  the  defendant 
are  not  admissible  to  show  malice,*"  but  threats  are." 


*  Magmer  v.  Renk,  65  Wis.  364. 

■■•  Chapman  v.  Dunn,  56  Mich.  31. 

3  Montross  v.  Brailsby,  68  111.  183. 

»  Fagiian  v.  Knox,  40  N.Y.  Sup.  Ct, 
41. 

^  Lawrence  v.  Lanning,  4  Ind.  194; 
Al.lri.lge  v.  Churchill,  28  Ind.  62. 

"  Underwood  v.  Brown,  106  Mass. 
298. 

^  Bartoa  v.  Kavaoaugb,  12  La.  Ann. 


332.  But  evidence  that  defendant  en- 
tertaine<l  unfriendly  feelings  against 
the  family  of  which  plaintifl'  v,;is  a 
member  is  admissible:  Long  v.  lloJg- 
ers,  19  Ala.  330. 

«  Ames  V.  Snider,  69  111.  376. 

»  PuUen  V.  Glidden,  68  Me.  y.'9. 

'•  Moore  v.  Sanborin,  42  Mo.  490. 

"  Thompson  v.  Lumley,  50  How.  Pr. 
106. 


1803  WHO   LIABLE  —  EVIDENCE   AND   DAMAGES.       g  1099 


CHAPTER  LV. 

VVTHO  LIABLE  —  EVIDENCE  AND  DAMAGES. 

8  1099.  Who  liable  —  In  general. 

§  1100.  Liability  of  prosecutor  fo/  judicial  error  or-aots. 

§  HOI.  BurdeB.«f  proof. 

§1102.  Law  and  fact. 

§  1103.  Evidence. 

§  1104.  Damages. 

§  1099.  Who  Liable  —  In  General.  —  All  the  persons 
concerned  in  originating  and  carrying  on  the  malicious 
prosecution  are  jointly  and  severally  liable.'  The  defend- 
ant need  not  have  been  the  originator  of  the  prosecution. 
Two  j)ersons  may  be  parties  to  an  arrest  and  imprison- 
ment and  both  be  liable, — one  because  he  was  the  active 
promoter  of  the  prosecution,  the  other  because  he  volun- 
tarily aided  and  assisted  therein,  either  by  direct  personal 
participation  or  advice.^  He  is  liable  if  in  point  of  fact 
the  indictment  was  preferred  at  his  instance,  though  he 
is  not  avowedly  the  prosecutor  appearing  of  record;*  and 
the  plaintiff  may  prove  by  evidence  dehors  the  record  who 
in  fact  acted  as  the  prosecutor  in  the  alleged  malicious 
prosecution.*  The  defendant  is  sufficiently  a  prosecutor 
if  the  prosecution  to  which  the  plaintiff  was  subjected  was 
instituted  at  his  instance  and  request  by  the  attorney  for 
the  state.®  An  agent  or  attorney  who  maliciously  sues  out 
the  process  is  liable.^  So  may  one  be  who  gives  another 
a  general  authority  to  use  his  name  as  he  sees  fit  in  pros- 
ecuting suits.'     An  action  cannot  be  maintained  against 

' Cotton r.Huidekoper, 2 Penr.&W.  'Kline  v.  Shuler,  8  Ired.  484;  49 
149;  Stansbury  v.  Fogle,  37  Md.  369; 
Clements  v.  Ohrly,  2  Car.  &  K.  686; 
Walser  v.  Theiss,  56  Mo.  89.  A  suit 
for  malicious  prosecution  can  be  main- 
tained against  several  defendants  with- 
out ail  averment  of  conspiracy:  Dreux 
V.  Dom'c,  18  Cal.  83. 

-  Staiislniry  v.  Fogle,  37  Md.  369;  Cot- 
ton i\  Huidekoper,  2  Penr.  &  VV.  149. 


'  Kline  v.  Shuler,  8  Ired. 
Am.  Dec.  402. 

*  Knauer  v.  Morrow,  23  Kan.  360. 

*  Grant  v.  Deuel,  3  Rob.  (La.)  17;  38 
Am.  Dec.  228. 

«  Warfield  v.  Campbell,  35  Ala.  349; 
Wood  V.  Weir,  5  B.  Mon.  544.  As  to 
responsibility  of  an  attorney,  see  Bick- 
nell  V.  Dorion,  16  Pick.  478. 

'  Kinsey  v.  Wallace,  36  Cal.  462. 


1099 


MALICIOUS   PROSECUTION. 


1891 


an  attorney  at  law  for  bringing  a  civil  action,  unless  ho 
comnioncod  it  without  the  authority  of  the  party  in  whose 
name  it  was  sued,  or  unless  there  was  a  conspiracy  be- 
tween them  to  bring  a  groundless  suit,  the  attorney 
knowing  it  to  bo  groundless,  and  commenced  without 
any  intention  or  expectation  of  maintaining  it.'  Where 
an  attorney  is  sued  for  a  malicious  prosecution  by  his 
client,  it  must  appear  that  he  know  it  was  both  witliout 
cause  and  malicious.'^  If  an  attorney,  from  malicious 
motives,  procure  from  justices  of  the  peace  an  unauthor- 
ized  order  of  attachment  operating  injuriously  upon  the 
defendant's  rights,  ho  is  liable,  as  well  as  his  client.^  And 
an  attorney  who  advises,  begins,  and  conducts  a  criminal 
prosecution  upon  an  understanding  with  his  client  that 
the  charge  against  the  accused  is  untrue,  is  liable.'  It 
seems  to  bo  necessary,  however,  that  one  to  be  liable  should 
advise  and  co-operate  in  the  prosecution  in  some  way. 
One  person  cannot  be  made  liable  in  damages  because  he 
knows  that  another  is  about  to  commit  an  unlawful  act, 
and  does  not  protest.  Hero  there  is  consent,  perhaps,  but 
not  co-operation.  Thus  A,  B,  and  C  are  partners,  and  A 
and  B,  believing  that  D  has  stolen  money  from  the  firm, 
commence  proceedings  against  him.  0  does  nothing  but 
passively  assent;  he  neither  advises  nor  protests  against 
the  act  of  A  and  B.  C  is  not  liable  to  an  action  of  ma- 
licious prosecution  by  D.^  Where  a  voluntary  association 
for  the  prosecution  of  thieves  caused  plaintiff's  prosecu- 
tion, only  the  members  participating  therein  wore  held 
liable."  Advising  persons  not  to  become  sureties  for  one 
who  has  been  arrested  does  not  tend  to  show  that  those 
who  give  such  advice  have  conspired  with  the  person  wlio 
caused  the  arrest,  and  are  therefore  liable  with  him  for 


'  Bicknell  v.  Dorion,  16  Pick.  478. 
«  Peck  V.  Chouteau,  91  Mo.  140;  60 
Am.  Rep.  236. 
^  Wood  V.  Weir,  5  B.  Mon.  544. 
*  Staley  v.  Turner,  21  Mo.  App.  244. 


» Gilbert  v.  Emmons,  42  III.  143;  89 
Am.  Dec.  412. 

®  Johnson  v.  Miller,  69  Iowa,  uO'J; 
58  Am.  Rep.  231. 


3895 


WHO   LIADLB  —  EVIDENCE    AND   DAMAOEfl.       ?  1009 


malicious  prosecution.  Nor  dops  thoir  enmity  towanl  the 
person  arrested, nor  their  wish  to  drive  hiiu  out  of  lown.' 
And  there  is  a  matoriul  distinction  between  institut- 
ing a  prosecution  and  merely  attending  a  hearing  ii[>on 
u  prosecution  already  commenced;  and  therefore  where 
the  defendants'  agent,  without  their  knowledge,  had  taken 
out  a  summons  charging  the  plaintiU'  with  stealing  some 
of  their  cattle,  and  the  only  part  the  defendants  took  in 
the  matter  was  to  attend  the  hearing  as  prosecutors  be- 
fore the  magistrate,  it  was  held  that  no  action  would  lie. 
"How  can  it  bo  said,"  said  Bramwell,  J.,  "that  they 
acted  without  reasonable  cause  in  so  attending?  If  they 
had  said,  before  they  heard  a  word  of  the  evi.ionco, 
'Wo  disavow  the  proceeding,'  that  surely  would  luivo 
been  acting  unreasonably;  for  it  would  have  been  acting 
precipitately,  before  they  knew  anything  about  the  mat- 
ter."" One  who  has  consented  to  the  use  of  his  name  as 
prochcin  ami  in  a  suit  by  one  being,  or  claiming  to  be,  a 
minor  is  not  liable  if  the  suit  was  erroneously  brought 
against  his  expectation,  and  without  his  consent,  express 
or  implied."  Grand  jurors  are  not  liable  to  an  action 
for  information  given  by  them  to  their  fellow-jurors  o\\ 
which  a  presentment  is  founded.'*  An  infant  is  not  liable 
for  the  malicious  prosecution  of  a  suit  during  his  infancy 
whore  it  was  brought  in  his  name  by  his  iwodiein  ami, 
and  without  his  knowledge  or  authority,  even  though  ho 
expressly  assented  to  the  suit  after  ho  had  knowlod^^o  of 
it.'  A  prosecution  which  in  the  outset  is  not  malicious, 
as,  for  instance,  if  undertaken  at  the  dictation  of  a  judge 
or  magistrate,  or  spontaneously  undertaken  from  having 
been  commenced  under  a  bona  fide  belief  in  the  guilt  of 
the  accused,®  may  nevertlieless  become  malicious  in  any 


'  Labar  v.  Batt,  56  Mich.  589. 

*  Weston  V.  Bceman,   27  L.   J.  Ex. 


57. 


"  Soulo  V.  Winslow,  66  Mc.  447. 
*  Black  V.  Sugg,  Hardin,  536. 


*  Burnham  ?'.  Seavcms,  101  Mass. 
360;  100  Am.  Dec.  1-23. 

'  Sec  pniit,  §  1100,  Liability  for 
Judicial  Error. 


-wc; 


imSSUSitStUtlSlSi 


ssaasa 


§  1099 


MALICIOUS   PROSECUTION. 


180G 


of  the  stages  [hrougli  which  it  has  to  pass  if  the  proso- 

cutor,  haviug  acquired  positive  knowledge  of  the  iiinoceiK'O 

of  the  accused, perseveres  in  the  prosecution  with  the  in- 

tention  of  maliciously  procuring  his  conviction.'     "  Take, 

for  instance,"  said  Oockburn,  G.  J.,  in  an  interesting  caso 

on  this  subject,^  "the  case  of  a  prosecutor  who,  after 

the  commitment  of  a  prisoner,  and  before  going  before  the 

grand  jury,  chanced  to  discover  the  clearest  proof  of  tho 

prisoner's  innocence,  and  yet  went  on  with  the   indict- 

ment  and  prosecution,  suppressing  the  newly  ascertain^.d 

facts,  and  supporting  the  case  against  tho   prisoner  by 

evidence    either  absolutely  false    or  rendered  so  by  tlio 

suppression  of  facts  which  would  have  shown  the  inno- 

cence  of  the  accused.     Can  it  be  said  that  to  prefer  an 

indictment  under  such  circumstances, to  be  followed  up  by 

such  a  course  of  proceeding  as  I  have  referred  to,  would 

not  be  a  malicious  prosecution  for  which  the  man  whose 

life  or  liberty  had  been  put  in  peril  by  it  should  have  a 

remedy  by  civil  action?  "     Bramwell,  J.,  in  the  same  case, 

offered   a  similar    illustration:   *'  Suppose,"  said    he,  "  a 

man's  servants,  on  good  ground,  cliarge  a  person  with 

stealing;  suppose  the  charge  is  bona  fide  made,  and    tho 

master  bound  over  to  prosecute;  suppose  another  ser^^int 

afterwards    discovers  the  property   under  circumstances 

showing  it  was  never  stolen,  and  gives  it  to  the  master, 

who,  for  a  grudge,  nevertheless  prefers  an  indictment  and 

suppresses  the  evidence  of  innocence,  —  would  no  action 

lie?     I  cannot  doubt  it  would;    and  yet  the  prosecutor 

would  have  given  no  evidence,  and  all  his  witnesses  would 

have  been  truthful."     But  an  allegation  that  a  suit  was 

maliciously  commenced  will  not  be  supported  by  evidence 

which    shows    that   the    defendant   brought   his    actici 

believing  that  he  had  good  cause  therefor,  but  detained 

property    attached,    after    learning    that    his    suit   was 

'  Fitzjohn  r.  Mackinder,  9  Com.  B.,        ^  Fitzjohn  v.  Mackinder,  9  Com.  B., 
N.  S..  508;  Cole  v.  Curtia,  16  Miuu.  182.    N.  S.,  508. 


1S97 


WHO   LIABLE  —  EVIDENCE    AND   DAMAGES. 


1099 


groundless/  The  action  will  likewise  lie  for  advising 
and  procuring  a  third  person  to  institute  a  malicious 
prosecution  ^\'ithout  probable  cause/  and  against  a  judge 
for  maliciously  conspiring  with  others  to  institute  in  his 
court  a  malicious  prosecution  against  the  plaintiff.''  Proof 
that  one  maliciously  made  the  affidavit  in  attachment, 
without  showing  further  intervention  on  hie  part,  will 
render  him  liable  for  the  resulting  injury.'* 

Illustrations.  —  A  party  went  before  a  justice  of  the  peace 
on  Sunday,  and  made  an  affidavit  upon  which  the  justice 
issued  an  attachment,  and  appointed  another  party  to  execute 
it,  who  tooic  the  writ,  and  under  it  seized  and  carried  away  the 
goods  of  the  defendant  in  the  attachment.  The  defendant 
appeared  before  the  justice,  and  procured  a  change  of  venue 
to  another  justice,  but  did  not  defend  the  attachment  suit  any 
further,  bu<^  brought  an  action  of  trespass  against  the  phiintifF 
in  tlio  attachment  tuit,  the  justice  who  issued  it,  and  the  ap- 
pointed constable  who  served  it.  Held,  that  they  were  all 
liable,  and  that  the  right  to  bring  the  action  of  trespass  was 
not  waived  by  appearing  and  taking  the  change  of  venue  in  the 
attuclnnent  suit:   Thomas  v.  Hinsdale,  78  111.  259. 


>  Stone  V.  Swift,  4   Pick.    389;    16 
Am.  Dec.  349. 

-  ''It  is  suid  that  iu  every  case  for 
malicious  prosecution  the  defendant  is 
chargeii  with  active  agency,  and  that 
ai;  action  for  iiiccly  advising  another 
to  institute  a  prosccntion  is  not  s' 
taiiiablo.  For  my  part,  I  can  con- 
ceive nothing  more  dirccs  than  the 
cliar;^o  lierc.  It  is  substantially  a 
chari;c  that  the  defendant  maliciously, 
ami  without  probable  cause,  consulted 
with,  advised,  and  procured  one  Z., 
falsely  and  maliciously,  and  without 
probable  cause,  to  pro:- ecuto  the  plaiu- 
titl'  for  felony.  This  procurement  is 
surely  actionable.  The  language  of 
the  declaration  corresponds  with  the 
form  of  declaring  in  an  action  on  the 
case  in  the  nature  of  an  action  for 
ac(ms[)iracy;  and  it  was  admitted  in 
the  argument  that  the  facts  set  forth 
would  bo  sufficient  if  proved,  in  an 
action  against  two  or  more  to  sustain 
Hucii  an  action.  If  .so,  a  charge  of  such 
advice  and  procurement  by  one  can- 


not less  entitle  the  plaintiff  to  this  ac- 
tion": Tucker  P.,  inMowry  t'.  Miller, 
3  Leigh,  5G1;  24  Am.  Dec.  080;  IVrdu 
V.  Conncrly,  1  Rice,  49. 

3  Stewart  v.  Coolcy,  23  Miuu.  347; 
23  Am.  Rep.  G90. 

*  Walser  v.  Thies,  5G  Mo.  89,  the 
court  saying:  "  \Vc  are  not  willing  to 
concede  that  it  is  necessary  to  the 
maintenance  of  the  action  that  the  de- 
fendant should  in  pj.son  deliver  tlie 
writ  to  the  officer,  or  bo  present  and 
point  out  the  property  and  tell  him 
what  to  do.  It  is  the  duty  of  the 
court  to  deliver  the  process  to  its  ex- 
ecutive olficer,  and  it  is  the  duty  of 
that  officer  to  levy  the  attachments 
on  whatever  property  may  be  neces- 
sary to  satisfy  the  same.  The  plain- 
tiff iu  the  suit  sets  the  whole prooeoJing 
in  motion  by  making  out  the  athdivit, 
and  if  he  does  the  .same  maliciiui.sly, 
vexatiously,  and  without  prob^ibla 
cause,  and  injury  results  froui  hia 
unlawful  and  wrongful  act,  he  is  liable, 
and  must  respond  iu  damages." 


§1100 


MALICIOUS   PROSECUTION. 


1898 


§  1100.  Liability  of  Prosecutor  for  Judicial  Error. 
—  Where  a  person  makes  his  complaint  to  a  magistrate 
or  other  judicial  officer,  and  the  latter  decides  that  it  is  a 
case  for  a  criminal  warrant,  and  issues  it,  the  prosecutor 
is  not  liable,  though  it  turn  out  that  the  charge  did  not 
constitute  a  crime,  or  that  the  person  arrested  is  inno- 
cent.^ And  where  one  fairly  discloses  information  to  a 
prosecuting  officer  which  results  in  a  criminal  prosecu- 
tion, the  party  making  the  disclosure  cannot  bo  held 
liable  for  a  malicious  prosecution.^  A  person  who  states 
to  the  police  his  reasons  for  suspecting  another  of  a 
felony,  and  his  opinion  that  there  is  ground  for  the  arrest 
of  the  suspected  person,  thereby  causing  the  arrest  of 
the  latter,  is  not  liable  either  in  an  action  for  malicious 
proscution  or  for  false  imprisonment.^  Where  A  made 
an  affidavit  before  a  justice  of  the  peace,  stating  that  ho 
had  lost  certain  goods  which  he  believed  Avcre  concealed  in 
the  plaintiff's  possession,  and  the  justice  thereupon  issued 
his  warrant  for  larceny,  and  the  plaintiff  was  arrested  and 
afterwards  acquitted,  it  was  held  that  A  was  not  respon- 
sible.* In  another  case,  the  plaintiff  was  a  publican  who 
dealt  with  the  defendant  as  a  brewer,  and  certain  casks 
containing  ale  had  been  sent  to  the  plaintiff's  house.  When 
they  became  empty,  they  were  sent  to  the  house  of  a  third 


1  Bennett  v.  Black,  1  Stew.  494;  Mil- 
ton V.  Elmore,  4  Car.  &  P.  456;  Carratt 
V.  Morley,  1  Gale  &  D.  275;  VVyatt  v. 
White,  5  Hurl,  &  N.  371;  Halm  v. 
Schmidt,  64Cal.  284;  Teal  v.  Fissel,  28 
Fetl.  Rep.  351 ;  Lark  v.  Bande,  4  Mo. 
App.  180;  Sisk  v.  Hurst,  I  W.  Va.  53. 

^  Smith  V.  Austin,  49  Mich.  286; 
Yocum  i-.Polly,  1  B.  Mon.  356;  36  Am. 
Dec.  583. 

3  Burns  v.  Erben,  1  Rob.  (N.  Y.) 
555. 

*  McNeelyt'.  Driscoll,  2Blackf.  259, 
the  court  saying :  ' '  This  affidavit  showa 
a  state  of  facts  on  which  an  action  of 
trover  might  have  been  maintained, 
but  it  contains  no  charge  of  larceny 
against  any  person.  Tlie  appellant  had 
lost  bi3  property  and  wished  to  recover 


it;  he  states  that  fact  to  a  justice  of 
the  peace.  The  justice  forms  his  judg- 
ment upon  the  facts  stated;  lie  issues 
his  mam  late  to  an  officer  to  suarcli  for 
the  property,  and  to  bring  the  pi;r.snn 
in  whose  possession  it  may  bo  foiunl 
before  himself  or  some  other  justice  of 
the  peace.  This  was  an  error;  but  it 
is  the  error  of  the  justice,  and  not  of 
the  appellant.  And  if  a  justice  of  the 
peace,  by  mistako  of  judgment,  con- 
ceives an  act  to  be  felony  which  is  not 
felony,  and,  in  consequence  of  tliiit 
mistake,  causes  an  innocent  person  to 
be  arrested  and  imprisoned,  the  law 
will  not  hold  the  person  who  made  the 
complaint  responsible  in  this  form  of 
action  for  the  consequences  of  such  er- 
rors." 


1899  WHO   LIABLE  —  EVIDENCE    AND    DAMAGES.       §  1100 


person.  The  defendant,  on  stating  the  facts  to  the  magis- 
trate, procured  a  warrant,  under  which  the  plaintiff'  was 
taken  into  custody.  It  was  ruled  that  no  action  would 
lie.'  In  another  case,  the  defendant  had  lost  a  hill  of  ex- 
change, which  he  supposed  was  stolon.  He  went  before 
a  magistrate  and  related  the  facts  and  circumstances  of 
the  loss,  and  a  warrant  was  issued  to  apprehend  the  plain- 
tiff on  the  charge  of  having  "feloniously  stolen  and  taken 
away  "  the  hill  oi  exchange.  The  words  in  Italics  were 
not  used  by  the  defendant,  but  were  inserted  in  the  war- 
rant by  the  magistrate's  clerk.  The  complaint  being  af- 
terwards dismissed,  it  was  held  that  the  defendant  was 
not  liable.'^  In  an  action  by  T.  against  K.  and  others  for 
malicious  prosecution,  it  appeared  that  the  prosecution 
complained  of  was  set  on  foot  by  the  defendants,  and 
rested  upon  an  affidavit  drawn  up  by  one  of  the  defend- 
ants and  verified  by  K.,  the  other,  wherein  a  larceny  of 
deeds  was  charged  to  have  been  committed  by  T.  from  K.; 
but  the  facts  and  circumstances  of  the  case  were  set  forth, 
and  showed  that  T.,  having  persuaded  K.  to  let  him  have 
possession  of  deeds  from  him  to  her  of  real  estate  (be- 
longing to  her,  but  the  title  to  which  was  held  by  him  in 
trust),  for  the  purpose  of  examination  and  correction,  re- 
fused to  return  them  to  her,  but  kept  them  by  violence, 
and  afterwards  conveyed  the  real  estate  to  another.  It  also 
appeared  that  at  the  time  the  deeds  were  not  recorded. 


'  "There  is  no  charge  of  felony  con- 
taineil  iu  tlio  iuforination;  it  contains 
a  .state  of  facts  certainly  not  amouut- 
iiig  ti)  felony,  but  for  which  an  action 
ot  trover  could  be  maintained.  The 
defendant,  having  lost  his  property, 
states  tlie  facts  to  the  magistrate,  upon 
whieh  lie  is  to  form  his  judgment.  If 
the  highest  eriminjil  judge  of  the  land 
was,  l)y  mistake  of  judgment,  to  con- 
ceive that  to  be  felony  which  did  not 
amount  to  that  offense,  and  to  commit 
tlio  party  complained  against,  would 
tliat  subject  the  party  complaining  to 
au  action  of  this  sort?  I  am  of  opinion 


it  ought  not":  Lord  Eldon  in  Leigh  v. 
Webb,  li  Esp.  1G5. 

'■'  "Tliero  was  nothing  in  the  de- 
fendant's conduct,"  said  Abbott,  C.  J., 
"to  show  that  lie  was  inlluenoed  l)y 
malice.  To  support  tho  averment 
of  malice,  it  must  be  shown  that  the 
charge  is  willfully  false.  But  here, 
according  to  tlic  evidence,  tho  defend- 
ant merely  related  his  story  to  the 
magistrate,  leaviug-it  to  him  to  deter- 
mine whether  tlic  facts  amounted  to  a 
felony":  Coiien  v.  Morgan,  0  Dow.  & 
R.  8. 


«» 


§  1100 


MALICIOUS   PROSECUTION. 


1900 


The  Now  York  court  of  appeals  held  that  if  the  statement 
of  surrounding  circumstances  in  the  affidavit  were  true, 
the  uclion  for   malicious  prosecution  could  not   be   sus- 
tained, even  tliough  the  district  attorney  afterwards  dis- 
missed the  indictment  against  T.,  after  K.  had  been  heard, 
as  not  sustained  by  the  evidence.     The  affiant  was  re- 
sponsible for  the  statements  in  her  affidavit,  but  not  for 
any  legal  conclusion  therefrom  of  a  police  magistrate,  or 
a  district  attorney,  or  a  grand  jury.^    A  master  had  given  a 
servant  into  custody  for  stealing  some  clippers  from  his 
stable,  and  was  sued  for  malicious  prosecution.     It  wjis 
shown  that  all  the  master  did  was  to  state  what  he  knew 
to  the  constable,  whereupon  the  constable  arrested  the 
servant  and  charged  him  with  the  larceny.      It  was  held 
that  the  master  was  not  liable.^    A  prosecutor  is  not  liable 
for  an  indictment  brought  in  by  the  grand  jury,  if  that 
body  found  it  in  disregard  of  his  evidence;  as  would  bo 
the  case  were  they  to  find  an  indictment  for  one  offense, 
when  the  prosecutor's  evidence  before  them  was  as  to  the 
commission  of  another.^     But  the  wrongful  issue  of  the 
w^arrant  must  have  not  arisen  from  the  fraud  or  falsehood 
of  the  prosecutor;  a  judicial  error  will  still  render  him 
liable,  if  it  appears  that  his  statement  has  been  untrue.'* 

In  an  English  case,  M.  sued  F.  for  a  debt.  F.  claimed  a 
set-off,  in  answer  to  which  M.  produced  his  ledger  con- 
taining an  acknowledgment  signed,  as  he  swore  on  the 
trial,  by  F.  The  latter  denied  the  signature,  which  he 
averred  to  be  a  forgery;  but  the  presiding  judge,  induced 
partly  by  M.'s  testimony,  and  partly  by  F.'s  conduct  be- 


»  Thaule  r.  KrekekT,  81  N.  Y.  428. 

•^  Dauby  /■.  Beardslcy,  43  L.  T.,  N.  -S., 
603,  Liiidley,  J.,  saying:  "It  has 
been  said  that  ho  «o  acLcd  that  he 
intended  the  constable  to  arrest  the 
phiiutitf,  or  as  it  has  been  said,  to  use 
a  couiinon  plirase,  he  set  the  stone 
rolling.  Now,  what  stone  has  he  set 
rolling?  It  is  simply  a  stone  of  sus- 
picion. There  was  no  direction  to  the 
countable  to  arrest  and  prosecute.    He, 


no  doubt,  suspected  Ehiuby,  and  de- 
scribed the  things  totheconstaiile,  but 
there  is  not  the  slightest  evidence  tlmt 
the  defendant  either  prosecuted  or  di. 
rected  any  one  else  to  prosecute.' 

"  Leidig  *'.  Rawson,  1  Scam.  '27-'j  2d 
Am.  Dec.  354. 

*  Dennis  v.  Ryan,  GoN.  Y.,  3S.");  L'2 
Am.  Rep.  635;  Forrest  v.  Collier,  L'O 
Ala.  175;  50  Am.  Dec.  190;  Farley  -•. 
Dauks,  4  £1.  &  B.  493. 


1901 


WHO    LIABLE  —  EVIDENCE    AND   DAMAGES. 


1100 


fore  him,  and  disbelieving  F.'s  denial,  on  his  own  motion 
committed  him  for  trial,  and  bound  M.  over  to  prosecute. 
F.  was  subsequently  tried  forjierjury,  and  acquitted;  and 
then  brought  an  action  against  M.  for  malicious  prosecu- 
tion. Tbe  jury  found  that  the  entry  had  not  been  signed 
by  F.,  and  that  M.  knew  this  to  bo  so.  It  was  held  that 
tbe  action  was  maintainable,  and  that  M.  was  liable.'  The 
defense  being  that  by  mistake  of  the  magistrate  in  draw- 
ing the  affidavit  the  defendant  was  made  to  charge  a  dif- 


1  Fitzjohn  v.  Magruiler,  8  Com.  B., 
N.  S.,  78;  9  Com.  B  ,  N.  S.,  508.  On  the 
tri;il  of  this  case,  Williams,  J.,  whoi)re- 
sidotl,  ordered  a  nonsuitoiitho  grouud 
that  the  action  was  not  maintaiual)lo. 
Ill  tlie  common  pleaa,  his  ruling  was 
sustained,  on  the  ground  that  the 
committal  of  F.  and  the  binding  over 
of  M.  to  prosecute  were  the  acts  oi 
the  judge  alone,  although  ho  was  in 
part  inilucnced  by  the  perjury  and 
forgury  of  M.  Willes,  J.,  dissented, 
holding  that  the  order  ought  not  to 
aid  -M. ,  because  occasioned  by  his  own 
coutrivance  and  wrong,  and  because 
it  was  obtained  by  a  fraud  on  the 
court,  and  was  therefore  void  as  a 
judicial  act.  But  in  the  exchequer 
chamber,  where  the  case  was  subse- 
quently taken,  the  two  lower  courts 
were  reversed  and  tlie  action  sus- 
taiuod,  two  judges  dissenting.  "It 
is  l)eyond  dispute,"  said  Cockburn,  J., 
"that  independently  of  the  county 
court  judge,  the  prosecution  would, 
under  the  circumstances,  have  been 
iniilieious.  Called  upon  to  answer  in 
damages  for  the  injury  intlicted  by  it 
on  the  plaintifiF,  the  defendant,  in 
order  to  avoid  the  consequences  of  a 
proceeding  on  the  face  of  it  otlierwise 
clearly  wrongful  and  actionable, 
seeks  to  protect  himself  by  showing 
that  ho  acted  under  the  order  of  the 
county  court  judge.  I  am  disposed 
to  concur  with  my  brother  Willes, 
who  dissented  from  the  majority  of 
the  court  of  common  pleas,  in  thinking 
that  it  is  not  competent  to  the  defend- 
ant to  shelter  himself  under  this 
order,  seeing  that  the  judge  was  in- 
duced to  make  it  through  his  perjury 
and  fraud.  To  suffer  the  judge  to  make 
Buch  an  order,  without  informing  him 


of  the  truth  and  disabusing  his  mind 
of  the  error  into  which  ho  had  been  led 
by  willful  falsehood,  was,  as  it  seeuia 
to  mc,  a  fraud  upon  the  judge,  as  well 
as  a  wrongful  act  towards  the  plain- 
tiff; and  I  cannot  bring  myself  to 
think  that  the  defendant  should  bo 
allowed  to  shelter  himself  under  an 
order  having  its  origin  in  his  own 
falsehood,  and  issuing  through  his  own 
fraud."  The  learned  judge  then  re- 
ferred to  Dubois  V.  Keats,  11  Ad.  & 
E.  329,  where  it  was  held  that  to  an 
action  for  a  malicious  prosecution  it 
was  no  answer  that  the  defendant  had 
been  bound  over  by  a  magistrate  to 
prosecute,  whero  this  was  the  result 
of  the  defendant's  false  and  malicious 
charge,  and  continued:  "Itliink  the 
same  principle  may  well  be  applied 
where  a  man,  by  his  own  i)erjury  and 
fraud,  and  by  an  abuse  of  the  confi- 
dence of  the  court,  has  led  to  his  being 
appointed  to  prosecute  one  M'hom  he 
knows  to  be  innocent,  when  by  a  dis- 
closure of  the  truth  he  might  at  once 
have  prevented  such  a  result.  1  doubt, 
therefore,  whether  we  ought  not  to  go 
the  length  of  holding  that  the  defend- 
ant, who,  seeing  that  tliis  onler  to 
prosecute  was  about  to  result  from  his 
own  fraud  and  perjury,  did  not  dis- 
abuse the  mind  of  the  judge,  must  be 
responsible  for  the  order  itself  as 
much  as  though  he  had  committed  the 
perjury  in  order  to  procure  it  to  be 
made.  Witliout,  however,  going  this 
far, —  assuming  that  the  defendant 
ought  not  to  be  held  responsible  for 
the  act  of  the  judge  in  directing  the 
prosecution  of  the  plaintiff.  —  I  am  still 
of  opinion  that  the  defendant  is  liable 
in  thia  action." 


§1101 


MALICIOUS    PROSECUTION. 


1902 


ferent  crime  from  that  intended,  the  defendant  may 
prove  that  the  crime  intended  to  be  charged  was  true  ac- 
cording to  his  belief.^ 

Illustrations.  —  Defendant  called  plaintiff  "a  liar  and 
thief,"  and  a  justice  of  the  peace,  thinking  a  crime  was  charged, 
caused  the  arrest  of  plaintiff.  Ilcld,  that  defendant  was  not 
liable  for  the  mistake  of  the  justice:  Newman  v.  Davis,  58  Iowa. 
447.  A  caused  B's  arrest  upon  a  warrant  for  larceny.  The 
justice,  of  his  own  motion,  changed  the  charge  of  larceny  to  one 
of  disorderly  conduct,  imposed  a  fine,  and  committed  1>  in 
default  of  payment  thereof  B  sued  A  and  the  justice  for 
malicious  prosecution,  trespass,  and  false  imprisonment.  Held, 
that  A  was  not  liable  for  anything  done  after  the  charge  IkkI 
been  changed:  Frankfurter  v.  Bryan,  12  111.  App.  549.  Plainiiif 
was  committed  for  trial  on  a  charge  of  arson,  upon  the  informa- 
tion of  the  defendant  and  another  witness.  The  latter  alone 
deposed  to  the  plaintiff  being  concerned  in  the  commission  of 
the  offense.  The  defendant  only  swore  as  to  the  fact  that  the 
premises  were  burned,  which  was  admittedly  true.  The  informa- 
tions were  sent  in  due  course  to  the  crown  solicitor  of  the  county 
where  the  offense  was  alleged  to  have  taken  place,  and  the 
prosecution  was  taken  up  and  conducted  by  the  crown.  The 
defendant  was  an  active  witness  for  the  prosecution,  and  from 
him  chiefly  was  obtained  the  information  required  by  the  crown 
in  carrying  on  the  prosecution.  Held,  that  a  belief  by  the  de- 
fendant, upon  reasonable  grounds,  in  the  guilt  of  the  plaintiff 
at  the  time  the  case  was  sent  for  trial  was  a  sufficient  defens^e 
to  the  action,  although  such  belief  might  not  have  in  fact  con- 
tinued up  to  the  trial  of  the  plaintiff  upon  the  criminal  charge; 
and  that  if  the  defendant  had  formed,  upon  reasonable  ground,  a 
belief  in  the  plaintiff's  guilt,  and  such  belief  continued  up  to 
the  date  at  which  the  prosecution  was  taken  up  by  the  crown, 
and  the  defendant  thereby  lost  all  dominion  over  it,  although 
the  defendant  afterwards  changed  his  opinion  as  to  the  truth 
of  the  charge,  no  duty  lay  upon  him  towards  the  plaintiff  to 
inform  the  public  prosecutor  of  the  alteration  in  the  opinion 
wliich  he  had  previously  entertained:  Duane  v.  Barry,  4  Law 
Rep.  Ir.  742. 

§1101.  Burden  of  Proof. —  The  burden  of  proof  of 
want  of  probable  cause  is  upon  the  plaintiff;  that  is  to 
say,  want  of  probable  cause  will  not  be  inferred  from  the 

'  O'Brien  v.  Frasier,  47  N.  J.  L.  349;  54  Am.  Rep.  170. 


1903  WHO   LIABLE  —  EVIDENCE    AND   DAMAGES.       §  1102 


mere  failure  of  the  prosecution/     The  burden  of  proof  of 
malice  is  also  ui)ou  the  plaintifif.'' 

§  1102.  Law  and  Pact.  —  The  question  of  probable 
cause  is  for  the  court  to  decide,*  except  whore  the  facts  are 
disputed,  in  which  case  the  jury  must  decide.^  In  short, 
the  question  of  probable  cause  is  a  mixed  question  of  law 
and  fact:  whether  the  circumstances  do  or  do  not  show 
probable  cause  is  a  question  of  law;  whether  they  did  or  did 
not  exist  is  a  question  of  fact.*     In   Iowa  it  is  held  (con- 


»  Besson  v.  Southard,  10  N.  Y.  236; 
Bnytl  V.  Cross,  35  Mil.  194;  Gnean  v, 
R.  U.  Co.,  51  Cal.  140;  Levy  v.  Bran- 
nan,  39  Cal.  485;  Hoyne  v.  Blair,  62 
N.  Y.  19;  Gooili;.  French,  115  Mass. 
201;  Wheeler  v.  Ncsbitt,  24  How. 
444;  Wilkinsons.  Arnold,  11  Ind.  45; 
Ames  V.  Snider,  09  111.  370;  Thomp- 
son i\  Lundey,  50  How.  Pr.  105; 
McCormack  i\  Sisson,  7  Cow.  715; 
Mitchiuson  v.  Cross,  58  111.  366; 
Thaule  V.  Krekcler,  81  N.  Y.  428; 
Sutton  V.  Anderson,  103  Pa.  St.  151; 
McFarland  v.  Washhurn,  14  111.  App. 
3t)9;  Stewart  v.  Cole,  46  Ala.  646; 
Pahner  v.  Richardson,  70  111.  544; 
Davie  v.  Wisher,  72  111.  262;  Calef  v. 
Thomas,  81  111.  478;  Morton  v. 
Y..ung,  55  Me.  24;  92  Am.  Dec.  565. 
And  slight  evidence  held  insufficient 
ill  Mitcliinson  v.  Cross,  58  111.  366; 
vmI  sufficient  in  Williams  v.  Van- 
meter.  8  Mo.  339;  41  Am.  Dec.  644. 

■'  Dietz  V.  Laugfitt,  63  Pa.  St.  234; 
McKlown  V.  Hunter,  30  N.  Y.  625; 
Fleckinger  v.  Wagner,  46  Md.  581; 
Purcell  V.  McNauiara,  9  East,  361; 
Israel  v.  Brooks,  23  111.  19;  Levy  v. 
Brannan,  39  Cal.  485;  Sappington  v. 
Watson,  50  Mo.  83;  Thaule  v.  Kre- 
kekr,  81  N.  Y.  428;  Frowman  v. 
Smith,  Litt.  Sel.  Caa.  7;  12  Am.  Dec. 
2G5, 

"  McWilliams  v.  Rdmi,  42  Md.  56; 
Speck  v.  Judson,  63  Mo.  207;  Cooper 
V.  Waldron,  50  Me.  80;  Sweet  v.  Ne- 
gus, 30  Midi.  406;  Chapman  v.  Caw- 
rey,  50  111.  512;  Thom])»on  v.  Force, 
65  in.  370;  Swaim  r.  Statford,  4  Ired. 
392;  Paugburn  v.  Bull,  1  Wend.  345; 
Mastent'.  Deyo,  2  Wend.  424;  Howard 
t'.  Thompson,  21  Wend.  319;  34  Am. 
Dec.  238;  Travis  v.  Smith,  1  Fa.  St. 


234;  44  Am.  Dec.  125;  Coleman  v. 
Henrich,  2  Maekcy,  189;  Benton  v. 
R.  R.  Co..  33  Minn.  189;  Eastin  v. 
Bank,  66  Cal.  123;  56  Am.  Rep.  77; 
Fulton  V.  Onesti,  00  Cal.  575.  It  is 
noterrortorefu.se  an  instruction  imply- 
ing that  it  is  for  the  jury  to  iletermine 
what  acts  made  the  plaintiff  liable  to 
arrest:  Reno  r.  Wilson,  49  111.  95.  It 
is  error  to  refuse  to  supplement  in- 
structions defining  probable  cause  by 
telling  the  jury  what  acts  constitute 
the  crime  for  which  plaintiff  was  pros- 
ecuted: Meysenberg  v,  Eugelke,  18 
Mo.  App.  346. 

*  Humphries  v.  Parker,  52  Me.  502; 
Heyne  v.  Blair,  62  N.  Y.  19;  Travis  v. 
Smith,  1  Pa.  St.  234;  44  Am.  Dec. 
125;  Cole  v.  Curtis,  16  Minn.  182; 
Sims  V.  McLcndon,  3  Strob.  557; 
White  V.  Fox,  1  Bibb,  309;  4  Am. 
Dec.  643;  Loggct  v.  Blount,  N.  C.  123; 
7  Am.  Dec.  702;  Heldt  r.  Webster,  00 
Tex.  207;  Donnelly  v.  Daggett,  145 
Mass.  314. 

*  Johnstone  v.  Suton,  1  Term  Rep. 
510;  Reynolds  r.  Kennta",  1  Wils. 
232;  Panton  v.  Williams,  I'Gale  &  D. 
521 ;  overruling  Isaac  i\  Brand,  2  Stark. 
168,  and  Brooks  i'.  Warwick,   1  Gale 

6  D.  521;  Bus.st  c.  Gibbons,  1)0  L.  J. 
Ex.  160;  Thaule  r.  Kiekelcr,  81  N.  Y. 
428;  Nash  v.  Orr,  3  Brev.  94;  5  Am. 
Dec.  547;  Colo  r.  Curtis,  16  Minn. 
182;  Horn?'.  Boon.  3 Strob.  307;  Lunda 
V.  Obert,  45  Tex.  5.S9;  Stone  v.  Crock- 
er, 24  Pick.  81;  MeCorniick  v.  Sisson, 

7  Cow.  715;  Burlinganie  ?'.  Burlingame, 

8  Cow.  141 ;  Miirrav  v.  Long,  1  Wond. 
140;  Pangburn  v.  fjiill,  1  \Vend.  345; 
Hall  V.  Suydam,  0  Barb.  83;  Weaver 
V.  Townsend,  14  Wend.  192;  Besson 
V.  Southard,  10  N.  Y.  236;  Thompson 


gll02 


MALICIOUS   PROSECUTION. 


1004 


trary  to  the  weight  of  authority)  that  the  proper  practice 
is  to  instruct  the  jury  as  to  what  constitutes  probable  cause 
in  hiw,  and  then  leave  them  to  apply  the  facts  thereto,  and 
to  find  therefrom  whether  probable  cause  is  or  is  not 
proved.'  In  California,  the  appellate  court  will  reverso 
where  plaintiff  in  an  action  for  malicious  prosecution  was 
nonsuited  on  the  ground  that  want  of  probable  cause  for 
the  prosecution  was  not  shown,  if  there  was  evidence  of 
want  of  probable  cause  which  should  have  been  submitted 
to  the  jury.'^  The  jury  should  be  distinctly  told  whether, 
the  facts  being  found,  probable  cause  is  or  is  not  proved.^ 
Where  the  circumstances  relied  on  as  evidence  of  prob- 


r.   Lumley,   50  How.    105;    Dietz  v. 
Langfitt,    G3  Pa.   St.  234;   Drigga   v. 
Benton,   44    Vt.    124;    Harkrador  v. 
Moore,  44  Cal.  144;  Uliner  v.  Lelancl, 
1  Mo.  135;  10  Am.  Dec.  48;  Crahtree 
?•.   Horton,  4   Munf.  59;    Madilox  v. 
Jack:jon,  4  Munf.  4G2;  Munns  v.  Du- 
pont,  3  Wash.  C.  C.  31;  Boytln  Cross, 
35  Md.  194;  Hill  v.  Palm,  38  Mo.  13; 
Plummor  v.  Green,  3  Hawks,  60;  14 
Am.  Dec.  572;  Miller  v.  Brown,  3  Mo. 
127;    23    Am.    Doc.    693;    French   v. 
Smith,  4  Vt.  303;   24  Am.  Dec.  616; 
Walbridge  v.  Purden,  102  Pa.  St.  1; 
Travis  v.  Smith,  1   Pa.   St.   237;    44 
Am.  Dec.  125,  tho  court  saying:   "As 
the  authority  to  institute  a  criminal 
prosecution  and  the  extent  of  tliat  au- 
thority are  derived  from  the  law,  the 
law  must  judge  of  its  exercise;  it  is 
therefore  the  duty  of  the  court  to  de- 
termine whether  the  proof  of  certain 
facts  constitutes  probable  cause,  and 
it  is  error  to  submit  that  question  to 
the  jury.     The  duty  of  the  jury  is  to 
say  what  facts  are  proved,  and  for  that 
purpose   they   are  to  decide  on   tlie 
wei;,'ht  of  evidence,  tho  credibility  of 
witnesses,  the  truth  of  conflicting  al- 
legations.     The   general  question   of 
probalde  cause  is  then  a  mixed  ques- 
tion (if  law  and  fact,  composing  two 
distinct  inquiries,  both  conducted  at 
the  same  time  on  a  jury  trial,  but  yet 
cognizable  before  two  distinct  tribu- 
nals,   each    of    which  discharges  its 
proper  functions." 

'  Shaul  V.  Brown,  28  Iowa,  37;  4 
Am.  Kep.  151. 


'  Simmons  v.  Brinkmcycr,  72  Cal, 
4S6. 

^  Ulmer  v,  Leland,  1  Me.  135;  10 
Am.  Dec.  48;  Bulkeley  v.  Sii.ith,  2 
Duer,  261 ;  Bulkeloy  v.  Keteltas,  6  N.  Y, 
384;  but  see  Caklwell  r.  Bcnntit,  '22 
S.  C.  1.  In  Masten  v.  Dcyo,  2  Wtud. 
424,  the  judge  told  the  jury  Uiat  lie 
was  inclined  to  believe  there  was  evi- 
dence enough  given  of  prob:il)le  iau.se 
to  protect  tlie  defendant,  but  loft  it  to 
them  to  decide.  Onappt;al  tliis  wa  i  hcM 
to  be  error.  "The  judge  erred,"  said 
Marcy,  J.,  "in  not  giving  thcdefoiul- 
ant  the  benefit  of  his  exposition  to  the 
jury  of  the  law  relative  to  what  con- 
stituted probable  cause  in  an  action 
for  a  malicious  prosecution.  lie  should 
not  have  taken  the  cause  from  tho  juiy 
if  there  was  the  least  doubt  as  to  the 
existence  of  the  circumstances  alleged 
as  the  probable  ground  of  the  criiniiial 
proceedings  against  the  plaintitl',  Init 
he  ought  to  have  instructed  tlieia  as 
to  the  law  involved  in  tlie  (|uost!'iii, 
and  as  to  what  crmstitutcd  a  1  gal 
excuse  for  the  defendant,  and  al-n 
whether  the  facts  relied  <n  in  the 
defense,  on  the  supposition  tluat  they 
should  be  found  true  )jy  thom,  inade 
out  a  probable  cause.  It  was  th(t  de- 
fendant's right  to  have  tho  jurj  in- 
structed in  their  duty  l)y  tlie  opinion 
of  the  court  upon  the  question  (it  hiw. 
This  was  not  done;  on  the  contrary, 
it  would  seem  that  both  tlio  law  and 
the  fact  were  left,  without  any  in- 
struction from  the  judge,  at  the  entire 
disposition  of  the  jury." 


1004 


1905  WHO  LIABLE  —  EVIDENCE   AND   DAMAGES.       §  1102 


able  cause  are  admitted  by  the  pleadings,  the  court  must 
pass  upon  them;  and  if  they  are  clearly  established  by 
uucontroverted  testimony  or  by  stipulation,  and  in  the 
opinion  of  the  court  they  make  out  probable  cause,  he 
may  properly  order  a  nonsuit.*  Where  the  testimony  of 
the  plaintiff  discloses  probable  cause,  or  no  probable 
cause,  for  his  arrest,  it  is  the  duty  of  the  court  to  so 
instruct  the  jury,  and  direct  a  verdict  for  the  defendant 
or  plaintiff,  as  the  case  may  be.''  But  if  the  facts  are 
controverted,  and  the  evidence  is  conflicting,  the  case 
must  go  to  the  jury.' 

Whether  the  prosecutor  acted  bona  fide  upon  the  opinion 
of  his  counsel,  believing  he  had  a  good  cause  of  action,  is 
a  question  for  the  jury;*  or  whether  the  statement  to  the 
counsel  was  a  full  and  fair  statement;*  or  whether  the 
attorney  was  a  proper  adviser.* 

The  question  of  malice  is  always  one  for  the  jury.^ 


1  Masten  v.  Deyo,  2  Wend.  424; 
Emerson  v.  Skaggs,  52  Cal.  246. 

^  Sutton  V.  Anderson,  10.3  Pa.  St. 
151;  Parli  v.  Reed,  30  Kan.  534. 

^  Jklasten  v.  Deyo,  ?  Wend.  424; 
Crabtree  v.  Horton,  4  Munf.  59;  Mad- 
dox  V.  Jackson,  4  Muuf.  462;  Hard- 
away  v.  Manson,  2  Munf.  230;  Heyne 
r.  Blair,  62  N.  Y.  19. 

*  Kavenga  v.  Mackintosh,  2  Bam. 
&  C.  093;  Hall  v.  Suydam,  0  Barb.  83; 
Potter  V.  Scale,  8  Cal.  217;  Thomp- 
son ('.  Luinley,  50  How.  Pr.  108;  An- 
derson V.  Friend,  71  111.  475. 

'■>  McLeod  V.  McLeod,  73  Ala.  42. 

« Watt  V.  Corey,  76  Me.  87. 

'  Mitchell  V,  Jenkins,  5  Bam.  &  Adol. 
.^88;  Ritchey  v.  Davis,  11  Iowa,  124; 
Newell  V.  Downs,  8  Blackf.  523;  Pot- 
ter r.  Scale,  8  Cal.  217;  Cloon  v. 
Gerry,  l.'J  Gray,  201;  Levy  w.  Bran- 
nan,  39  Cal.  485;  Vou  Latham  v. 
Libby,  38  Barb.  .S-SO;  Besson  v.  South- 
ard, 10  N.  Y.  236;  Masten  v.  Deyo,  2 
Wend.  424;  Closson  v.  Staples,  42  Vt. 
209;  1  Am.  Rep.  316;  WagstafiF  v. 
Shippel,  27  Kan.  450;  Gee  v.  Culver, 
12  Or.  2-28.  It  must  be  left  to  the 
jury  ill  every  case.  In  Mitchell  v. 
Jeukius,  5  Barn.  &  Adol.  588,  a  credi- 
120 


tor  had  caused  his  debtor  to  be  arrested 
for  the  sum  of  forty-five  pounds,  know- 
ing that  there  was  a  set-off  to  the 
amount  of  sixteen  pounds.  He  in- 
structed the  officer  who  made  the  ar- 
rest to  allow  the  set-off  in  case  the 
debtor  would  settle.  The  debtor  sub- 
sequently brought  an  action  for  mali- 
cious prosecution.  On  the  trial,  Taun- 
ton, J.,  ruled  that  there  was  no 
probable  cause,  and  that  there  was 
malice  in  law,  aa  the  act  of  causing 
the  plaintiff 's  arrest  for  a  larger  sum 
than  he  owed  was  wrongful,  and  he 
told  the  jury  that  the  only  question 
for  them  was  the  amount  of  damages. 
On  appeal,  a  new  trial  was  granted: 
" Malice," said  Denman,  C.  J.,  "may, 
in  some  instances,  be  fairly  inferred 
by  the  jury  from  the  arrest  itself,  and 
the  circumstances  under  which  it  is 
made,  without  any  other  proof.  They, 
however,  are  to  decide,  as  a  matter  of 
fact,  whether  there  be  malice  or  not. 
I  have  always  understood  tho  question 
of  reasonable  or  probable  cause  on  the 
facts  found  to  be  a  question  for  the 
opinion  of  the  court,  and  malice  to  be 
altogether  a  question  for  the  jury," 
Said   Parke,   J.^  in  ^the  ^same    case: 


§  1103 


MALICIOUS   PROSECUTION. 


1900 


Illustrations.  —  Ono    S.  daubed    defendant's   fence  with 
paint,  and  told  his  wife  that  it  had  beeti  done  by  plaintiff  ajid 
her  sister.     Ho  afterwards  told  defendant  that  it  was  not  done 
by  them,  but  by  himself.     Subsequently,  defendant  proeured  a 
warrant  against  plaintiff  and  her  sister  for  malicious  niischiof, 
and  they  were  tried  before  a  police  justice  and  the  complaint 
dismissed.     It  appeared  that  defendant  had  ag'-eed  to  settle  the 
matter  with   S.      Held,  that   it  was  a  questlvm   for   the  jury 
whether  defendant  had  probable  cause  for  procuring  the  war- 
rant: Fnote  V.  Milhlcr,  1  Thomp.  &  C.  45G;  45  How.  Pr.  38.     N., 
a  school-teacher,  procured  from  F.,  ono  of  the  trustees,  an  order 
upon  the  district  collector,  upon  the  express  agreement  that  it 
should  not  bo  presented  until  signed  by  the  other  trustees.   N., 
without  procuring  the  other  signatures,  got  the  money  from  the 
collector  by  falsely  stating  that  he   had   shown  the   order  to 
another  trustee,  who  said  that  it  was  all  right.     Thereupon  F. 
procured  N.'s  arrest  for  obtaining  money  by  false  pretenses.  In 
an  action  by  N.  for  malicious  prosecution,  held,  that  whether  or 
not  there  was  a  reasonable  cause  for  procuring  the  arrest  was  a 
question  for  the  jury:  Neil  v.  Thorn,  17  Hun,  144.     A,  while  at- 
tending a  fair,  left  his  buggy  near  the  fair-grounds,  and  upon 
searching  for  it  could  not  find  it,  and  was  told  by  persons  on  the 
ground  that  B  had  hitched  his  horse  to  it  and  driven  off,  and 
that  B  was  a  hard  case.    A  afterwards  made  numerous  inquir- 
ies  for   the   buggy,  but   could   hear   nothing   of  it,  and  was 
then  advised  by  counsel  that  the  act  of  B  was  larceny,  and 
he  should  procure    a  warrant  for   B's   arrest.     The  warrant 
was  obtained  and  placed  in  the  hands  of  a  constable.     A  was 
afterwards  told   that  B  denied  having  taken  the  buggy,  and 
claimed  that  it  was  taken  by  a  servant  of  his  (B's)  brother.    A 
afterwards  found  the  buggy  on  the  fair-grounds.    Held,  that  the 
question  of  probable  cause  was  for  the  jury:  Lawyer  v.  Loomls, 
3  Thomp.  &  C.  393. 

§  1103.     Evidence.  —  Whatever  was  admissible  to  de- 
feat the  action  in  which  the  arrest  was  made  is  likewise 


"  When  there  is  no  reasonable  or  prob- 
able cause,  it  is  for  the  jury  to  infer 
malice  from  the  facts  found.  That 
is  a  question  in  all  cases  for  their 
consideration,  and  it  having  in  this 
instance  been  withdrawn  from  them,  it 
is  impossible  to  say  whether  they  might 
or  might  not  have  come  to  the  con- 
clusion that  the  arrest  was  malicious. 
It  was  for  them  to  decide  it,  and  not 
for  the  judge.  I  can  conceive  a  case 
where  there  are  mutual  accounts  be- 


tween parties,  and  where  an  arrest 
for  the  whole  sum  claimed  by  tlie 
plaintiff  would  not  be  malicious.  For 
example,  the  plaintiflf  might  know 
that  the  set-ofiF  was  open  to  dispute, 
and  that  there  was  reasonable  ground 
for  disputing  it.  In  that  case,  though 
it  might  afterwards  appear  that  the 
set-off  did  exist,  the  arrest  would  not 
be  malicious."  Pattcson  and  Taun- 
ton, JJ.,  concurred. 


.900 


1907  WHO   LIADLE — EVIDENCE    AND    DAMAGES.       §1103 


with 
and 
dono 
•c(l  a 
:;hiof, 
)laitit 
io  Ibo 

)  war- 

.  N., 
order 
hat  it 

S.     iS-, 

)m  the 
ilcr  to 
pon  F. 
ics.  In 
thcr  or 
t  was  a 
liilo  at- 
d  upon 
J  on  the 
off,  and 
inquir- 
ed was 


ly^ 


and 


ivarrant 
A  was 


gy: 


and 


her.    A 
hat  the 

Loomis, 


to  de- 
ikewise 

Ein  arrest 
jcl  Ly  the 
lious.  For 
Iht  know 
|o  disi)ute, 

|le  (ground 

>e,  though 

that  the 

vouM  not 

Ind  Taun- 


admissible  on  the  question  of  the  right  of  tho  party 
arrested  to  recover  for  tho  injury  sustained.'  The  plain- 
tiir  need  not  give  in  evidence  all  tlio  evidence  given  be- 
fore the  magistrate.  He  must  prove  liis  case,  but  this 
does  not  necessarily  require  him  to  show  everything  that 
took  place  on  the  former  proceedings."  The  finding  of  the 
magistrate  on  the  preliminary  e.^amination  introduced 
uri  evidence  of  probable  cause  cannot  be  impeached  by 
showing  that  he  acted  unfairly  or  improperly  in  tho  oxam- 
iiiation.'  The  magistrate  may  testify  as  to  what  the  testi- 
mony before  him  on  the  preliminary  examination  was.* 
Tho  official  stenographer  of  tho  court  may  read  from  his 
notes  the  testimony  of  a  \vrtnes3  taken  at  the  trial  of  the 
indictment,  and  who  was  beyond  the  jurisdiction  of  tho 
trial  court,  for  the  purpose  of  showing  want  of  probable 
cause.®  It  is  not  competent  to  call  one  who  acted  as  juror 
on  the  trial,  and  ask  him  if  the  jury  deliberated  upon  the 
cliarge,  and  on  what  grounds.® 

On  the  question  of  malice  and  probable  cause,  tho  fol- 
lowing are  relevant  and  admissible,  viz.:  Statements  made 
by  third  persons  to  the  defendant;^  what  was  testified  to 
upon  the  criminal  trial,  though  such  testimony  was  there 


'Haddea  v.   Mills,  4    Car.   &    P. 

4SG. 

■'  Bacon  v.  T.,<vne,  4  Cush.  217.  A 
was  arrested  for  larceny  at  the  in- 
stance of  B,  and  on  being  discharged, 
brought  an  action  for  malicious  prose- 
cution against  him.  It  was  held  that 
A  may  prove  that  B  was  present  when 
two  witnesses  swore  before  a  magis- 
trate to  facts  showing  that  the  larceny 
was  not  committed  by  A;  and  the  rec- 
ord of  proceedings  before  the  magis- 
trate need  not  be  produced:  Watt  v. 
Greenlee,  2  Hawks,  18G.  , 

^  Bacon  v.  Towne,  4  Gush.  217.  « 
*  Bacon  v.  Towne,  4  Cush.  217.  The 
answer  of  the  justice  who  issued  the 
warrant  of  arrest  to  a  question  asked 
l)y  tlie  defendant  as  to  what  he  (the 
justice)  thought  of  the  plaintiff,  and 
wiiether  he  was  not  subject  to  tlie 
vagrant  law,  is  admissible  in  evidence 


as  a  part  of  the  res  qestm:  Williams  v. 
Vanmetor,  8  Mo.  339;  41  Am.  Dec. 
644.  In  an  action  for  malicious  prose- 
cution, the  evidence  showed  that  the 
prosecution  was  dismissed  by  the  jus- 
tice. The  defendant  cannot  introduce 
evidence  as  to  what  he  himself  stated 
at  the  time  the  prisoner  was  dis- 
charged as  tlie  reason  of  the  failure  in 
the  prosecution:  McCauslaad  v.  Won- 
derly,  50  111.  410. 

*  Brown  v.  Willoughby,  5  Col.  1. 

«  Scott  V.  Shelor,  28  Gratt.  891.  A 
grand  juryman  was  asked  whether 
the  evidence  of  defendant,  then  tlie 
prosecuting  witness,  was  considered  by 
the  jury.  It  was  held  improper,  as  the 
juryman  could  not  tell  what  the  jury 
considered,  but  only  what  they  said: 
Parkhurst  v.  Masteller,  57  Iowa,  474. 

7  French  v.  Smith,  4  Vt.  303;  24 
Am.  Dec.  616. 


§  1103 


MALICIOUS   PROSECUTION. 


1008 


incompetent;'  that  defendant  had  received  information 
from  a  reliable  source  which  induced  him  to  cause  tlic 
arrest  of  the  plaintiff",  and  what  that  information  was, 
and  declarations  made  to  him  by  others,  and  reports  in 
circulation;-  the  proceedings  of  the  court  in  the  prose- 
cution;^ hostility  and  unfriendly  feeling  entertained  l)y 
defendant  towards  plaiutilf  prior  to  the  alleged  prosecu- 
tion;* the  previous  personal  relations  of  the  parties,  and 
that  the  defendant  had  said  he  wa"  not  personally  cogni- 
zant of  the  matters  on  which  he  had  based  the  prosecu- 
tion, and  that  plaintiff  did  not  commit  the  crime;"  that 
the  defendant,  at  the  time  when  ho  instituted  the  prosecu- 
tion complained  of,  believed  that  the  claim  on  which  it  was 
founded  was  a  valid  and  legal  claim  against  the  plaintin';" 
that  the  plaintiff  was  guilty  as  charged;^  facts  tending  to 
show  that  what  the  defendant  did  was  done  without 
malice,  and  that  ho  had  a  right  to  suppose  that  there  was 
reasonable  cause  for  his  action;  ^  in  an  action  for  the  mali- 
cious prosecution  of  G.  for  burning  H.'s  barn, evidence  that, 
pending  the  same,  H.  attached  G.'s  property  and  detainotl 
it  in  his  (H.'s)  possession,  so,  also,  evidence  that  II. 
actively  assisted  the  officer  arresting  G.  in  procuring 
evidence  of  the  size  of  G.'s  boots  and  tracks."  One  sued 
for  a  malicious  prosecution  may  testify  that  he  was  not 
prompted  by  ill-will  or  by  mi-lice.**'  And  the  following 
have  been  held  irrelevant  and  iaadmissible:  The  fact  that 
plaintiff  was  a  minor  when  Jie  assault  and  battery  was 
committed  on  which  the  alleged  malicious  prosecution 
was  brought;"  or  defendant's  social  position;'^  or  that 
defendant  endeavored  to  find  out  plaintiff's  domicile,  to 


'  McMahan  v.  Armstrong,  2  Stew. 
&  P.  151;  2.3  Am.  Dec.  .304. 

■'  Lainbv.  Gallaml,  44Cal.  609. 

sDreuxr.  Domec,  18Cal.  8.3. 

♦  Bruingtont'.Wingate.So  Iowa,  140. 

f-  Patterson  v.  Garlock,  39  Mich.  447. 

"  Garrett  v.  Mauuheimer,  24  Mina. 
193. 


^  Bruley  v.  Rose,  57  Iowa,  651. 

^Bradner?'.  Faulkner,  93  N.  Y.  Mo; 
Vansickle  v.  Brown,  68  Mo.  627. 

•  GiflFord  v.  Hassam,  50  Vt.  704. 

'®  McL'ormack  v.  Perry,  47  Hun, 
71. 

"  Motes  V.  Bates,  74  Ala.  374. 

"  Renfro  v.  Prior,  22  Mo.  App.  403. 


1909  WHO   LIABLE  —  EVIDENCE   AND  DAMAGES.       §  110-i 

inform  him  of  the  attachment  and  prevent  a  siicrifice  sale 
of  the  goods.'  In  an  action  for  a  vexatious  suit  and 
malicious  holding  to  bail,  the  records  of  other  actions 
brought  by  the  same  dofoudant  against  the  ploutiiT  can- 
not be  given  in  evidence.* 


§  1104.  Damages.  —  In  an  action  for  malicious  prose- 
cution, indemnity  is  awarded  for  all  the  injury  to  reputa- 
tion, feelings,  health,  mind,  and  person  caused  by  tho 
arrest  of  the  plaintiff;  ^  also  for  tho  injury  to  his  fame  and 
reputation  occasioned  by  the  false  accusation.*  Tlio 
attorney  fees  expended  in  the  defense  of  the  malicious 
suit  are  recoverable  as  a  part  of  the  damage  for  such  an 
action;"  but  the  attorney  fees  expended  for  bringing  the 
action  for  damages  on  account  of  the  malicious  suit  is  no 
part  of  the  damages.**    Where  defendant  on  an  ex  parte 


»  Scovill  V.  Glasnor,  79  Mo.  449. 

^  lliiy  V.  Law,  Pot.  C.  C.  207. 

'  Fagnan  v.  Kuox,  40  N.  Y.  Sup. 
Ct.  41;  McWUliains  v.  Hoban,  42  Md. 
51). 

♦  Sheldon  v.  Carpenter,  4  N.  Y. 
570;  55  Am.  Dec.  301. 

"McCardle  v.  McGinley,  86  Ind.  638; 
44  Am.  Rep.  343;  Marshall  v.  Bettner, 
17  Ala.  832;  Ziegler  v.  Powell,  54  Ind. 
\''A;  Gregory  v.  Chambers,  78  Mo. 
294;  Fagaan  v.  Knox,  40  N.  Y.  Sup. 
Ct.  41. 

'■  Stewart  w.  Souneborn,  98  U.  S.  197; 
Gooilr.  Mylin,  8  Pa.  St.  51;  49  Am. 
Die.  493;  Alexander  v.  Herr,  11  Pa. 
St.  537;  Stopp  v.  Smith,  71  Pa.  St. 
285;  Hicka  v.  Foster,  13  Barb.  663. 
In  Landa  v.  Obert,  45  Tex.  539,  the 
court  say:  "There  is  unquestionably 
some  conflict  in  the  decisions.  And 
wo  readily  admit  that  some  of  the 
eiirlior  decisions  of  this  court  tend  in 
some  dugree  to  maintain  the  proposi- 
tion that  when  fraud  or  malice  are  of 
tho  giijt  of  plaintiff 's  action,  he  may 
recover  his  counsel  fees  in  x'rosecuting 
tlio  Huit  as  part  of  his  damages.  But 
wliile  we  do  not  mean  to  intimate 
that  there  are  no  cases  in  which  the 
plaintiff  may  be  entitled  to  their  re- 
'^ovtiry,  he-  is  only  entitled  to  do  eo, 


as  wo  think,  where  they  are  a  part  of 
the  damages  resulting  as  tho  natural 
and  proximate  conseimcnco  of  tlio  act 
comx)lained  of:  Hicks  v.  li'ostcr,  13 
Barb.  663.  In  Lincoln  v.  R.  R.  Co., 
23  Wend.  425,  Chief  Justice  Nelson, 
in  delivering  the  opinion  of  tho  court, 
remarks:  'The  charge  as  to  expenses 
beyond  taxable  costs  and  counsel  fcea 
in  conducting  tho  suit  as  a  spccitio 
item  of  damages  to  be  taken  into  ac- 
count, I  am  iuclmed  to  think  was  erron- 
eous. These  have  been  fixed  by  law 
which  is  as  applicable  in  damages 
as  in  debt.'  And  in  Day  v.  Wood- 
worth,  13  How.  303,  while  vindicating 
the  principle  allowing  the  jury  to  give 
exemplary,  punitive,  or  vindictive 
damages  in  certain  cases.  Green,  J., 
says:  '  That  while  damages  assessed  by 
way  of  example  may  indirectly  com- 
pennate  the  plaintiff  for  money  ex- 
pended in  counsel  fees,  these  fees  can- 
not be  taken  as  the  measure  of  punish- 
ment, or  as  a  necessary  element  in  its 
infliction.  As  has  been  well  remarked, 
if  the  plaintiff  is  to  recover  damages 
for  his  counsel  fees  when  he  succeeds, 
he  ought  to  pay  the  defendant  like 
fees  when  he  fails  in  his  suit;  the  law, 
however,  entitles  the  defendant  to  no 
such   redresa':     13    How.  303.    lu 


"^I'l^iwtiiy^iC^jP,^ 


§1104 


MALICIOUS   PROSECUTION. 


1910 


application  had  by  means  of  an  injunction  kept  plaintifF 
out  of  certain  coal  lands  for  a  year,  the  measure  of  dam- 
ages was  held  to  be  the  value  of  the  use  of  the  property 
for  business.*  In  an  action  for  maliciously  holding  the 
plaintiff  to  bail  upon  a  ne  exeat,  the  plaintiff  may  give 
evidence  that  ho  has  suffered  in  the  public  estimation  iu 
consequence  of  the  process  of  ne  exeat.  But  he  cannot 
show  such  injury  in  consequence  of  reports  circulated  by 
the  defendant,  although  such  reports  may  be  given  in 
evidence  to  show  malice  in  the  defendant.^ 

Punitive  damages  may  bo  assessed  in  an  action  for 
malicious  prosecution  if  actual  malico  is  shown,  or  a 
design  to  injure  plaintiff,  or  fraud  and  oppression.^  If 
the  jury  find  that  the  prosecution  originated  without  prob- 
able cause,  and  in  malico,  they  may  find  that  in  continu- 
ing it  the  defendant  acted  in  the  same  manner,  and  may 
give  punitive  damages.*     The  pecuniary  circumstances 


Stepp  V.  Smith,  71  Pa.  St.  286,  the 
supreme  court  of  Pcnnsylvfiiiiareaffirm 
tlie  case  of  Good  v.  Mylin,  8  Pa.  St. 
57,  40  Am.  Dec.  49.1,  which  expressly 
overrules  Wirt  v.  Vickers,  8  Watts, 
2'27,  and  Rogers  v.  Falls,  8  Pa.  St. 
lot),  and  holds  it  clearly  erroneous  to 
instruct  the  jury  in  case  of  tort  to  in- 
clude in  their  verdict  expenses  in- 
curred iu  establishing  plaintiff's  right. 
'  So  to  charge, '  says  the  court,  '  was 
to  forget  that  only  such  damages  couM 
bo  recovered  as  arose  out  of  the  in- 
jury; and  not  to  allow  them  iis  a  eon- 
seipionce  of  bringing  the  suit.  This 
is  wrong  in  logic  as  well  as  in  law.' 
In  Howell  V.  Scroggins,  48  Cal.  35G,  the 
court  below  had  instructed  the  jury 
that  they  were  not  limited  iu  assess- 
i'lg  damages  to  mere  compensation, 
but  might  give  exemplary  damages, 
and  could  take  into  consideration 
pi  liiititF's  expenses  in  prosecuting  the 
suit.  The  court,  after  a  review  of  the 
general  current  of  decisions  on  the 
suliject,  were  reluctantly  compelled  to 
rovorse  the  judgment.  It  says:  'The 
damatfes  found  by  the  jury  were  not 
e.xcesslve,  and  if  we  could  feel  at  lib- 


erty  to  disregard  the  error  of  tlio 
court  below,  or  were  satisfied  that  it 
did  not  inilucuco  the  action  of  the  jury, 
wo  should  affirm  tiie  judgment.'  Ju 
Earle  v.  Tuppcr,  45  Vt.  283,  the 
court  say:  'Tiie  j;rcat  weight  of  au- 
tliority  seems  to  be  opposed  to  tliu 
allowance  of  couasol  fees  as  an  cle- 
ment of  damages,  even  in  cases  jirop- 
er  for  exemplary  damages.  At  least 
there  is  so  much  authority  that  way 
that  this  court  is  at  liberty  to  disre- 
gard these  the  other  way,  if  necessaiy, 
to  follow  the  rule  most  in  accordaiuo 
with  legal  principles  and  sound  rea- 
son.' See  also  Hoadly  v.  Watson, 
45  Vt.  289;  12  Am.  Rep.  197;  ]5,ir- 
nard  v.  Poor,  21  Pick.  282;  Fairlninks 
V.  Winter,  18  Wis.  287;  80  Am.  i»eo. 
705;  Stimpsou  v.  K.  R.  Co.,  1  Wall. 
Jr.  167." 

'  Newark  Coal  Co.  v.  Upson,  40  Ohio 
St.  17. 

'^  Zantzinger  w.Weightman,  2Craiich 
C.  C.  478. 

»  Vinal  V.  Cove,  18  W.  Va.  1;  Uc- 
Williams  v.  Hoban,  42  Md.  50. 

*  Cooper  V.  Utterbach,  37  Md.  283. 


1911  WHO  LIABLE  —  EVIDENCE   AND   DAMAGES.       §  1104 

of  the  defendant  may  bo  considered  in  determining  the 
amount  of  the  damages.'  Evidence  that  pldinliff  was 
confined  apart  from  his  wife,  who  was  also  arrested,  is 
admissible,  even  though  such  separation  was  legal.^  The 
fact  that  plaintiff  might,  in  the  criminal  proceeding,  have 
shortened  his  imprisonment  by  availing  himself  of  tho 
preliminary  examination  need  not  bo  considered  as  a 
ground  for  reducing  damages,  unless  there  is  aflBrmative 
proof  that  his  motive  in  waiving  examination  and  expos- 
ing himself  to  continued  imprisonment  was  to  enhance 
damages.'  Declt:rations  of  the  plaintiff  prior  thereto  and 
tending  to  provoke  the  prosecution  are  inadmissible  in 
mitigation  of  the  actual  damages  sustained,  but  are  ad- 
missible to  mitigate  the  damages  for  the  indignity  and 
tho  punitive  damages  claimed.^  The  fact  that  plaintiff's 
wife  was  made  sick  by  reason  of  the  arrest  is  too  remote 
for  special  damage."  Plaintiff  cannot  recover  for  a  con- 
version of  the  goods  attached."  Where  evidence  was  ad- 
mitted, upon  the  question  of  damages,  of  the  appointment 
of  a  receiver,  after  tho  vacation  of  the  attachment,  upon 
plaintiff's  own  election,  and  the  consequent  sacrifice  of 
tho  property,  this  was  held  too  remote,  though  plaintiff 
may  have  been  induced  to  take  this  course  by  his  credi- 
tors.^ 

m  an  action  against  two  defendants  for  malicious 
prosecution,  a  severance  of  the  damages  in  the  verdict  is 
a  ground  for  a  reversal  and  a  new  trial.*  The  jury  are  the 
proper  judges  of  the  amount  of  damages,  and  unless  there 
is  something  in  the  case  showing  that  the  jury  in  their 
determination  were  influenced   by  passion,  prejudice,  or 


^  Bull.  N.  P.  13;  Whitfield  v.  West- 
brook,  40  Miss.  311;  ^  iu  v.  Peck- 
ham,  42  Wis.  493. 

■'  Spear  v.  Hiles,  G7  Wis.  350. 

»  King  V.  Colvin,  11  R.  I.  5S2. 

♦  Prentiss  v.  Shaw,  56  Mo.  427;  96 
Am.  Dec.  475. 


^  Hampton  v.  Jones,  58  Iowa,  317. 

'Burton  v.  R.  R.  Co.,  33  Minn. 
189. 

'  Cochrane  v.  Quackenbush,  29 
Minn.  376. 

8  McCool  V.  Mahoney,  54  Cal.  491. 


§1104 


MALICIOUS   PROSECUTION. 


1912 


some  improper  motive,  the  court  will  not  interfere  to  dis- 
turb their  verdict/ 


'  Chapman  v.  Dodd,  10  Minn.  350; 
Ross  V.  luness,  35  111.  487;  85  Am.  Dec. 
373.  A  bid  off  certain  property  of  B, 
his  debtor,  at  a  sale  on  execution,  took 
actual  possession  thereof,  and  put  it 
into  the  hands  of  an  agent  for  sale, 
under  an  arrangement  with  B  that  it 
should  be  sold,  and  that  any  balance 
remaining  after  satisfying  the  execu- 
tion, etc.,  should  be  paid  to  B.  Before 
the  property  was  sold,  however,  B 
broke  into  the  place  where  it  was  kept, 
and  removed  and  disposed  of  a  part 
of  it.  A  thereupon,  after  consulting; 
highly  reputable  and   able  lawyers, 


and  acting  upon  their  advice,  had  B 
arrested  for  larceny,  but,  after  being 
confined  a  few  hours  only,  he  gave 
bail  and  was  released,  and  the  grand 
jury  found  no  bill  against  him.  In  an 
action  against  A  for  malicious  prose- 
cution, held  that  a  verdict  of  ten 
thousand  dollars  was  outrageously  ex- 
cessive, and  that  a  remittitur  of  four 
thousand  dollars  did  not  remove  the 
element  of  prejudice,  passion,  or  mis- 
conception which  must  have  influenced 
the  jury  in  making  up  their  verdict: 
Loeweuthal  v.  Strong,  90  111.  74. 


TITLE  XHI. 

WRONGS  IN  DOMESTIC  RELATIONS. 


w 


§] 
§] 
§] 


§ii< 

Conver 

any  on 
The  gr 

' Sanbo 
Winsmon 
Wuedon 
357;  Rab 
Prestoa  t 
82  Am.  D( 
121  Mass. 
10  Ired.  5; 


1915 


TITLE  XIII. 

WRONGS  IN  DOMESTIC  EELATIONS. 


CHAPTER  LVI. 

CRIMINAL  CONVERSATION  AND  SEDUCTION 


§  1105. 

§  7106. 

§  1107. 

§  1108. 

§  1109. 

§  1110. 

§1111. 

§  1112. 

§1113. 

§  1114. 

§  1115. 

§1116. 

&1117. 
§1118. 
§1119. 
§  1120. 
§  1121. 
§  1122. 
§  1123. 


Interference  with  marital  rights  -  Criminal  converRation. 
Defenses. 

Damages. 

Evidence. 

Interference  with  parental  rights— In  general. 

Seduction  defined  —  Elements  of. 

Seduction  alone  not  actionable. 

Rights  of  action  bjr  woman  seduced. 

By  father. 

By  mother. 

By  others. 

Where  woman  is  of  age. 

Statutory  remedy. 

Defenses. 

Damages  —  Measure  of. 

Evidence  —  In  general. 

In  aggravation. 

In  mitigation. 

Pleading. 


§  1105.  Interference  with  Marital  Rights  — <3riminal 
Conversation.  -  An  action  lies  by  the  husband  against 
any  one  who  seduces  or  entices  his  wife  away  from  him  » 
The  ground  of  such  an  action  is  the  infliction  upon  the 

«..  Rutledge,  81  HI.  266;  Conway'r. 
Nicol    34    Iowa,  533;  Van   Vacter  v. 

m'JVk^'P'  Lf~-'^^-  S78;  Wood  V. 
Matthews,  27  Iowa.  409;  Ferguson  v. 
Smiihers  70  Ind.  519;  36  Am.  Rep. 
i?r  o^S^^rt  V.  Greenwalt,  44  Mich. 
246;  38  Am.  Rep.  200. 


'  Sanborn  v.  Neilson,  5  N.  H.  314- 
Winsmore  v.  Greenbank,  Willes,  577- 
Wuedon  v.  Timbrell,  5  Term  Rep.' 
30/ ;  Raba  v.  Hanna,  5  Ohio,  530; 
Preston  v.  Bowers,  13  Ohio  St.  1; 
?2  Am.  Dec.  430;  Hadleyw.  Heywood, 
i^l  Mass.  236;  Barbee  v.  Armstead 
lOIred.  530;  .1  Am.  Dec.  404;  Crose 


■"■Wi 


§  1105 


WRONGS  IN   DOMESTIC   RELATIONS. 


1916 


husband  of  some  one  or  more  of  the  following  injuries:; 
1.  Dishonor  of  the  marriage-bed;  2.  Loss  of  the  wife's 
affections;  3,  Loss  of  the  comfort  of  the  wife's  society; 
4.  Total  loss  of  the  wife's  services  where  she  absconds 
from  the  husbanJ,  and  probable  diminished  value  of 
services  where  she  does  not;  5.  The  mortification  and 
sense  of  shame  that  most  usually  accompany  this  domes- 
tic wrong/  But  the  gravamen  of  an  action  for  criminal! 
conversation  is  the  seduction;  hence  if  this  is  not  proved^ 
the  plaintiff  in  such  an  action  cannot  recover  for  the  loss 
of  his  wife's  society.''  So  the  plaintiff  must  prove  an 
actual  'inge;  proof  of  reputation  and  cohabitation  is 
not  sL.u^.c.u;*  and  if  there  has  been  a  voluntary  sepa- 
ration .  no  action  lies  for  a  subsequent  seduction  of  the 
wife.' 

Any  interference  mtti  the  domestic  rights  of  the  husband 
is  also  actionable.  Thus  where  a  complaint  charged  the  de- 
fendant with  wickedly  and  wrongfully,  etc.,  contriving  to 
alienate  the  affections  of  the  plaintiffs  wife  from  him,  and 
with  persuading  and  inducing  her  to  refuse  to  acknowledge 
and  receive  him  as  her  husband,  whereby  he  had  wholly 
lost  and  been  deprived  of  the  comfort,  fellowship,  society, 
aid,  and  assistance  of  his  wife  in  his  domestic  affairs, 
it  was  held  that  a  sufficient  cause  of  action  was  stated.' 
An  action  for  alienating  a  wife's  affections  is  maintain- 
able without  proof  of  debauching  her  or  enticing  her 


'  Cooley  oil  Torts,  224. 

*  Wood  V.  Matthews,  47  Iowa, 
409. 

^  Cathorwood  v.  Caston,  13  Mees. 
&  W.  201;  Hutchina  w.  Kinrmell,  31 
Mich.  126;  18  Am.  Rep.  164;  Daun  v. 
Kingdom,  I  Thomp.  &  C.  492;  Kibby 
V.  Rucker,  1  A.  K.  Marsh.  391;  Kep- 
pler  V.  Elser.  23  111.  App.  643.  The 
marriage  may  be  proved  by  witnesses 
as  well  as  the  record:  Kilburn  v.  Mul- 
len, 22  Iowa,  503;  or  by  the  plaintiff 
and  his  wife:  Jacobsen  v.  Siddal,  12 
Or.  280;  53  Am.  Rep.  360.  Declara- 
tions of  the  defendant  th"*  he  knew 
A  was  married  to  the  piaintiff,  and 


that,  with  full  knowledge  of  that  fact, 
Jie  had  debauched  her,  are  admissible 
in  evidence  in  proof  of  the  marriage: 
Forney  v.  Hallacher,  8  Sei-g.  &  11. 
159;  11  Am.  Dec.  590.  Contra,  Dana 
V.  Kingdom,  1  "  'homp.  &  C.  492. 

♦  Weedon  v.  Timbrell,  6  Term  Rep. 
357;  Fry  v.  Derstler,  2  Yeates,  278.. 
See  Chambers  v.  Caulfield,  6  East,  1145. 
A  husband  may  maintain  an  action  of 
criminal  conversation,  although  th& 
intercourse  took  place  after  his  final 
separation  from  his  wife,  and  after  a, 
divorce  for  hia  cruelty:  Michael  v. 
Dunkle,  84  Ind.  644;  43  Am.  Rep.  100. 

6  Hermance  v.  James,  47  Barb.  120. 


1917       CRIMINAL   CONVERSATION   AND    SEDUCTION.       §  1105 


away.'  One  who  secretly  sold  laudanum  to  a  wife,  which 
slie  used  as  a  beverage,  whereby  her  health  was  greatly 
impaired,  was  held  liable  to  the  husband  as  being  guilty 
of  assisting  her  in  the  violation  of  her  duty  as  wife.^  The 
intent  to  seduce  a  wife  is  an  aggravation  of  a  trespass,  as 
well  as  an  actual  seduction  would  be.''  A  husband  may 
maintain  an  action  for  enticing  away  his  wife,  or  indu- 
cing her  to  live  apart  from  him,  even  against  the  wife's 
father.^  But  the  case  of  a  wife's  parents  merely  har- 
boring or  protecting  her  after  she  has  left  her  husband 
will  not  be  an  enticing  from  him,  and  will  not  render 
them  liable.®  But  whenever  a  wife  is  not  justifiable  in 
abandoning  her  husband,  he  who  knowingly  and  inten- 
tionally assists  her  in  thus  violating  her  duty  is  guilty  of 
a  wrong  for  which  an  action  will  lie.®  In  short,  for  an 
injury  to  the  wife,  either  intentionally  or  negligently 
caused,  which  deprives  her  of  the  ability  to  perform  ser- 
vices, or  lessens  that  ability,  the  husband  may  maintain 
an  action  for  the  loss  of  service,  and  also  for  any  incidental 
loss  or  damage,  such  as  moneys  expended  in  care  and 
medical  treatment,  and  the  like.' 

A  wife  may  maintain  an  action  for  the  loss  of  the  so- 
ciety and  companionship  of  her  husband  against  one  who 
wrongfully  induces  and  procures  her  husband  to  aban- 
don or  send  her  away.  But  the  acts  of  defendant  causing 
the  injury  must  have  been  malicious.® 

'  Reinehart  v.  Bills,  82  Mo.  534;  52 
Am.  Rep.  385, 

2  Hoard  v.  Peck,  56  Barb.  202. 

8  Matteson  v.  Curtis,  1 1  Wis.  424. 

♦Bennett  v.  Smith.  21  Barb.  439; 
Hutcheson  v.  Peck,  5  Johns.  196;  Bar- 
bee  i".  Armstead,  10  Ired.  530;  51  Am. 
Dec. 404;  Friend  v.  Friend,  Wright,  639. 

*  Friend  v.  Thompson,  Wright,  636; 
Burnett  v.  Burkhead,  21  Ark.  77;  76 
Am.  Dec.  358;  Turner  v.  Estes,  3 
Mass.  317;  Rabe  v.  Hanna,  5  Ohio, 
530. 

8  Barnes  v.  Allen,  30  Barb.  663; 
Phipps  V.  Squire,  Peake,  82.  One 
who  receives  a  wife  to  his  home  who 


was  treated  with  cruelty  by  the  hus- 
band cannot  recover  from  her  husband 
for  her  support,  if  one  of  liis  motives 
in  receiving  her  was  to  facilitate  adul- 
terous intercourse:  Almy  v.  Wilcox, 
110  Mass.  443. 

'  Matteson  v.  R.  R.  Co.,  35  N.  Y. 
487;  Smith  v.  St.  Joseph,  55  Mo.  456; 
17  Am.  Rep.  660;  Berger  v.  Jacobs,  21 
Mich.  215;  Barnes  v.  Martin,  15  Wis. 
240;  82  Am,  Dec.  670;  Atlantic  etc. 
R,  R.  Co.  V.  Hopkins,  94  U.  S.  11. 

"  Westlake  v.  Westlake,  34  Ohio  St. 
621;  32  Am,  Rep.  397;  Clark  v.  Har- 
lan, 1  Cin.  Rep.  418;  but  see  Lynch 
V.  Knight,  9  H.  L  577. 


§§  HOG,  1107      WRONGS    IN   DOMESTIC   RELATIONS.  1918 


§  1106.  Defenses. — That  the  husband  was  privy  to  or 
conuived  at  the  intercourse  is  a  good  defense;*  or  that  ho 
permitted  lier  to  follow  the  life  of  a  prostitute.^  But  mcro 
negligence  or  indifference  is  no  bar;^  or  that  the  husband 
was  cruel  to  his  wife;^  or  that,  at  and  before  the  seduction 
charged,  no  affection  existed  between  the  plaintiff  and  his 
wife.^  The  woman's  consent  is  no  defense,  and  the  fact 
that  the  wife  is  subsequently  divorced  is  no  bar  to  the  ac- 
tion;" nor  is  the  fact  that  the  intercourse  was  accomplished 
with  violence,  and  against  her  consent;'' nor  that  there  was 
no  actual  loss  of  the  wife's  services.*  It  is  no  bar  to  the 
action  that,  since  the  cause  of  action  accrued,  the  wife  has 
obtained  a  divorce  from  the  plaintiff;^  nor  that  the  bus- 
band  has  forgiven  or  condoned  the  adultery  with  the  de- 
fendant.*" 

Illustrations.  —  A  wife  obtained  a  divorce,  the  husband 
making  no  defense.  He  afterwards  sued  A  for  criminal  con- 
versation with  his  wife,  alleging  an  act  as  known  to  him  before 
the  divorce  suit.  Held,  that  the  suit  against  A  was  barred  by 
the  decree  in  the  divorce  suit:  Gleason  v.  Knapp,  56  Mich.  291; 
56  Am.  Rep.  388. 

§  1107.  Damages.  —  The  extent  of  the  damages  to  be 
awarded  will  depend  on  the  previous  relations  of  the  hus- 
band and  wife:  if  they  were  cordial  and  affectionate,  his 
injury  would  be  great;  if  otherwise,  his  injury  would  be 
consequently  small."     But  the  husband  cannot  recover 


'  Bennett  v.  Allcott,  2  Term  Rep. 
168;  Winter  v.  Henu,  4  Car.  &  P. 
494;  Ilea  v.  Tucker,  51  111.  110;  99 
Am.  Dec.  539;  Bunnell  v.  Greathead, 
49  Barl).  lOG;  but  see  Sanborn  v, 
Neilson,  4  N.  H.  .501. 

^  Sherwood  v.  Titman,  55  Pa.  St.  77; 
Cook  V.  Wood,  30  Ga.  891;  76  Am. 
Dec.  677. 

^  Bunnell  v.  Greathead,  49  Barb. 
106. 

*  Hadley  v.  Heywood,  121  Mass. 
236. 

6  Dallas  V.  Sellers,  17  Ind.  479;  79 
Am.  Dec.  489. 

«  Wales  V.  Miner,  89  Ind.  118. 


'  Bigaouette  v.  Paulet,  1.34  Mass. 
123;  45  Am.  Rep.  ;W7;  Egbert  v. 
Greenwalt,  44  Mich.  245;  38  Am. 
Rep.  260. 

*  Bigaouette  v.  Paulet,  134  Mass. 
123;  45  Am.  Rep.  307;  Jacobsen  v. 
Siddal,  12  Or.  280;  53  Am.  Rep.  'MO. 

»  Wood  V.  Matthews,  47  Iowa,  409; 
Michael  v.  Dunkie,  84  Ind.  544;  43 
Am.  Rep.  100. 

^°  V^erholf  v.  Van  Honwenleugen,  21 
Iowa,  429;  Stumm  v.  Hummel,  H9 
Iowa,  478;  Clouaer  v.  Clapper,  59  lud. 
548. 

"  Cooley  on  Torts,  224;  Hadley  v. 
Heywood,  121  Mass.  236.     "Any  uu- 


1919       CRIMINAL   CONVERSATION   AND   SEDUCTION.      §  1107 

any  damages  for  the  injury  to  the  happiness  nnd  reputa- 
tion of  his  children  or  "family."'  The  damages  are  in 
the  discretion  of  the  jury,  with  which  the  court  will  not 
interfere.-  Evidence  of  the  pecuniary  condition  of  the 
parties  is  admissible.^  The  circumstances  of  the  connec- 
tion, viz.,  whether  the  wife  was  importuned  by  her  par- 
amour, or  whether  she  sought  or  threw  herself  in  his  way, 
whether  she  was  overcome  by  persuasion,  or  gave  herself 
away  willingly,  are  admissible  in  evidence  in  the  ques- 
tion of  damages.'*  The  bad  character  of  the  husband  will 
not  mitigate  damages,  unless  he  be  guilty  of  infidelity 
or  other  wrong  to  the  wife  herself.®  But  in  mitigation  of 
damages  it  has  been  held  admissible  to  show  that  the 
plaintiff  was  cruel  to  his  wife;"  that  she  was  a  bad  char- 
acter;^ that  the  marriage  was  not  one  of  affection,  and  had 
not  ripened  into  love.*  Where  loss  of  service  is  alleged 
in  aggravation  of  damages,  the  failure  to  prove  the  same 
does  not  defeat  the  right  to  recover  damages  for  the  men- 
tal anguish  of  the  husband  in  the  dishonor  of  his  bed, 
etc.® 


happy  relations  existing  between  the 
plaintiff  and  his  wife  not  caused  by 
the  conduct  of  the  defendant  may  af- 
fect the  question  of  damages,  and  were 
properly  submitted  to  the  jury;  but 
they  were  in  no  sense  a  justification 
or  palliation  of  the  defendant's  con- 
duct. They  are  not  allowed  to  affect 
the  damages  because  the  acts  of  the 
defendant  are  less  reprehensible,  but 
because  the  conduct  of  the  husband  is 
such  that  the  injury  which  acts  oc- 
casion is  less  than  otherwise  it  might 
have  been." 

'  Ferguson  v.  Smethers,  70  Ind.  519; 
36  Am.  Rep,  186. 

'■'  Torre  v.  Summers,  2  Nott  &  McC. 
2G7;  10  Am.  Dec.  597; 

»  Rea  V.  Tucker,  51  111.  112;  99  Am. 
Dec.  539;  Peters  v.  Lake,  66  111.  208; 
16  Am.  Rep.  593.  Proof  of  the  plain- 
tiffs bankruptcy  at  the  time  of  the 
trial  is  inadmissible  on  the  amount  of 
exemplary  damages  proper  to  be  re- 


covered: Peters  v.  Lake,  G6  111.  206; 
16  Am.  Rep.  593. 

*  Ferguson  v.  Smethers,  70  Ind.  519; 
36  Am.  Rep.  186. 

*  Norton  v.  Warner,  9  Conn.  172; 
Shattuck  V.  Hammond,  4G  Vt.  466;  14 
Am.  Rep.  631;  Van  Vacter  v.  McKil- 
lip,  7  Blackf.  578.  The  plaintiff's  gen- 
eral character  is  not  in  issue,  but  only 
his  character  as  a  husband:  Norton  v. 
Warner,  9  Conn.  172. 

8  Coleman  v.  White,  43  Ind.  429. 
'Barter    V.    Crill,    33  Barb.    283. 

Proof  of  misconduct  of  the  wife  prior 
to  her  actual  intercourse  with  the  de- 
fendant may  be  given,  although  after 
the  time  when  familiarities  were 
proved  to  have  taken  place  between 
the  wife  and  the  defendant:  Torre  v. 
Summers,  2  Nott  &  McC.  267;  10 
Am.  Dec.  597;  Davenport  v,  Russell, 
5  Day,  149. 

*  Dance  v.  McBride,  43  Iowa,  624. 

9  Yundt  V.  Hartrunft,  41  111.  10. 


§§  1108,  1109      WRONGS  IN   DOMESTIC  RELATIONS.  1920 

§  1108.  Eyideuce.  —  In  an  action  for  enticing  away 
the  plaintiff's  wife,  the  declarations  of  the  wife  are  not 
admissible  in  evidence.'  The  confessions  of  the  wife  iu 
an  action  by  the  husband  against  her  seducer  are  not  evi- 
dence against  the  defendant.*  In  an  action  against  a 
third  party  for  inducing  the  plaintiff's  husband  to  scud 
her  away,  the  declarations  of  the  husband  made  in  the 
absence  of  the  defendant  are  not  admissible.'  Written 
declarations  by  the  wife  not  proved  to  have  been  author- 
ized by  or  in  the  possession  of  defendant  cannot  be  read 
in  evidence  against  him.*  The  wife's  letters  or  statements 
may  bo  proved  to  show  the  previous  state  of  their  rela- 
tions, and  of  her  feelings  toward  her  husband.'  But  not 
the  opinion  of  a  physician  who  had  attended  her  as  to 
her  fondness  for  the  defendant."  The  previous  unchas- 
tity  of  the  wife  may  be  shown.''  Evidence  of  prior  acts 
of  adulterous  intercourse  upon  which  the  statute  of  lim- 
itations has  run  is  admissible  for  the  purpose  of  showing 
the  intimate  relations  of  the  parties,  and  of  corroborating 
the  evidence  introduced  to  establish  the  illicit  act  which  is 
within  the  statute,  and  upon  which  a  recovery  is  sought.^ 

§  1109.  Interference  with  Parental  Riifhts — In  General. 
—  A  parent  has  a  right  of  action  for  damages  for  being 
deprived  of  tho  services  of  his  child."  Loss  of  service  to 
the  parent  may  be  occasioned  by  enticing  the  child  away/" 


*  Winsmore  v.  Greenbank,  Willes, 
577. 

*  Bull.  N.  P.  28;  Preston  v.  Bowers, 
13  Ohio  St.  1;  82  Am.  Dec.  430;  Mc- 
Vey  V.  Blair,  7  Ind.  590;  Dance  v. 
McBride,  43  Iowa,  624. 

3  Westlake  v.  Westlake,  34  Ohio  St. 
621;  32  Am.  Rep.  307. 

*  Underwood  v.  Linton,  54  Ind.  468. 
'Willis  V.   Bernard,   8  Bing.    376; 

Gilchrist  v.  Bale,  8  Watts,  335;  34 
Am.  Dec,  469;  Palmer  v.  Crook,  7 
Gray,  418. 

6  McVey  v.  Blair,  7  Ind.  590. 

'  Torre  v.  Summers,  2  Nott  &  McC. 


267;  10  Am.  Dec.  597;  Clouser  v. 
Clapper,  59  Ind.  648;  Ilea  v.  Tucker, 
51111.  110;  99  Am.  Dec.  539. 

*  Conway  v.  Nicol,  34  Iowa,  533. 

•  See  ante,  Division  I.,  Title  Parent 
and  Child. 

"Bundy  v.  Dodson,  28  Ind.  295; 
Everett  v.  Shcrfey,  1  Iowa,  356;  Sher- 
wood w.  Hall,  3  Sum.  127;  Caughey  u. 
Smith,  47  N.  Y.  244;  Stow  v.  Hey- 
wood,  7  Allen,  1 18;  Plummer  v.  Webb, 
4  Mason,  380;  Sargent  v.  Mathewson, 
38  N.  H.  54;  Vaughan  v.  Rhodes,  2 
McCord,  227;  13  Am.  Dec.  713;  Jones 
V.  Tevia,  4Litt.  25;  14  Am.  Dec.  98. 


1021       CRIMINAL   CONVERSATION   AND   SEDUCTION.      §  1110 


by  forcibly  abducting  thp  child,*  by  boating  or  othonviso 
purposely  injuring  the  child,^  by  a  negligent  injury 
wliich  disables  the  child  from  labor,^  and  in  case  of  a 
female  child,  by  seduction.^  Giving  shelter  or  protection 
to  a  child  to  enable  him  to  keep  away  from  his  parent 
is  actionable."  So  an  action  has  been  sustained  for  en- 
ticing a  minor  child  from  the  service  of  the  parent,  and 
procuring  her  to  bo  married  without  his  consent.® 

§  1110.  Seduction  Defined — Elements  of. —  Seduction 
is  "  the  wrong  of  inducing  a  female  to  consent  to  unlaw- 
ful sexual  intercourse  by  enticements  and  persuasions 
overcoming  her  reluctance  and  scruples."  '  The  defend- 
ant must  by  acts  and  persuasion  have  overcome  her  opposi- 
tion and  debauched  her.^  In  Indiana,  in  an  action  brought 
by  a  woman  for  her  own  seduction,  the  complaint  alleged 
that  the  defendant  wickedly,  deceitfully,  and  wrongfully 
seduced  the  plaintiff  under  a  promise  on  his  part  to  pay 
off  liens  on  her  property,  furnish  her  money  to  carry  on 
lior  business,  and  to  keep  and  support  her,  in  considera- 
tion that  she  would  submit  her  person  to  his  desires;  that 
she  believed  and  belied  on  these  promises,  and  that  he 


'  Magee  v.  Holland,  27  N.  J.  L.  8(5; 
72  Am.  Dec.  341;  Plummer  v.  Webb, 
4  Mason,  380. 

-  Hoover  ('.  Helm,  7  Watts,  02;  Cow- 
don  r.  Wright,  24  Wend.  429;  35Ain, 
Dec.  633;  Whitney  v.  Hitchcock,  4 
Donio,  401;  Klugman  v.  Holmes,  54 
JIo.  304. 

^  Karr  i>.  Parks,  44  Cal.  46. 

*Scof>o«<,  sec.  illO. 

*  Sargent  v.  Mathewson,  38  N.  H. 
54;  Buttertield  v.  Ashley,  6  Cash.  249. 
Everett  v.  Sherfey,  1  Iowa,  356. 

"  Hills  ('.  Hobert,  2  Root,  48;  Jones 
V.  Tevis,  4  Litt.  25;  14  Am.  Dec.  98. 
Coiifrci,  Hervcy  v.  Moseley,  7  Gray, 
479,  the  court  saying:  "The  law  of 
marriage  entirely  overrides  the  gen- 
eral principles  of  right  of  the  parent 
to  the  services  of  the  child,  or  the 
diiticd  from  one  of  the  other  as  servant 
and  master,  by  allowing  the  female 
child  to  terminate  it  at  any  momeut 
121 


after  she  arrives  at  the  age  of  twelve 
years,  by  imiting  herself  to  some  one 
in  marriage.  If  the  marriage  of  the 
daughter  was  a  legal  act,  from  the 
time  of  its  consummation  the  daughter 
was  legally  discharged  from  all  further 
duties  to  perform  service  for  her  pa- 
rent, having  assumed  new  relations  in- 
consistent therewith." 

'  Abbott's  Law  Diet.  The  word 
"seduce,"  when  used  with  reference 
to  the  conduct  of  a  man  toward  a 
woman,  has  a  precise  and  determinate 
signification,  and  it  is  not  necessary, 
in  an  information  for  the  crime  of 
seduction,  to  charge  the  offense  in  any 
other  language:  State  v.  Bierce,  27 
Conn.  319. 

«Hogan  V.  Cregan,  6  Robt.  138; 
Delveo  v,  Boardman,  20  Iowa,  446; 
Smith  V.  Milburn,  17  Iowa,  30;  Brown 
V.  Kingsley,  38  Iowa,  220;  Wouter  v. 
Geraer,  9  La.  Ann.  523. 


§1111 


WRONOS   IN   DOMESTIC   RELATIONS. 


1922 


failed  to  fulfill  thorn;  that  they  wore  falsely  made  with  u 
view  to  her  seduction.  The  court  held  that  the  action 
would  not  lie.  The  phiintilF's  real  griovonce,  said  the  court, 
was  the  defendant's  failure  to  fulfill  his  promises.  Tho 
plaintiff  agreed  to  dispose  of  her  virtue  for  a  pecuniar 
consideration.  Such  a  contract  being  immoral,  the  luw 
will  alford  her  no  remedy.  She  bargained  for  hor  virtue, 
and  if  she  failed  to  secure  tho  price  agreed  upon,  it  is  hor 
own  fault  and  folly,  and  she  cannot  be  heard  to  coniplaiu.' 
There  is  no  seduction  where  a  woman  "  yields  through  the 
promplongs  of  her  own  lascivious  desires."^  An  action  for 
seduction  does  not  lie  if  tho  woman  yielded  becausio  the 
man  told  her  that  if  she  did  not  ho  should  go  with  other 
women,  and  where  ho  informed  her  that  he  visited  her  to 
procure  sexual  intercourse.^  But  in  the  civil  action  by  the 
master  or  parent  for  loss  of  services  it  does  not  seem  to  be 
important  by  what  means  tho  seduction  has  been  accou^ 
plished.^  Proof  of  the  sexual  intercourse  followed  I 
pregnancy  (or  other  effect  causing  a  loss  of  services)  is 
sufiicient.''  It  is  seduction,  though  the  connection  is  ac- 
complished  by  force.''  A  woman  formerly  unchaste  may 
be  seduced,  though  this  fact  may,  in  an  action  under  a 
statute  brought  by  herself  for  her  own  seduction,  affect 
the  measure  of  damages.'  But  the  woman  must  be  chaste 
at  the  time  to  be  the  subject  of  seduction,  though  she  may 
have  fallen  before  and  repented.^ 

§1111.  Seduction  Alone  not  Actionable.  —  The  se- 
duction alone  does  not  give  a  right  of  action,  unless  the 
master  can  show  that  loss  of  service  followed  as  a  result 


»  Wilson  V.  Ensworth,  85  Ind.  399. 
»  Bell  V.  Rinker,  29  Ind.  267. 
8  Baird  v.  Boehner,  72  Iowa,  318. 

*  Reed  v.  Williams,  5  Sneed,  580; 
73  Am.  Dec.  157;  White  v.  Murtland, 
71  111.  250;  22  Am.  Rep.  100. 

*  Leucker  v.  Steileu,  89  111.  545;  31 
Am.  Rep.  104. 

"  Leucker  v.  Steileu,  89  111.  545;  31 


Am.  Rep.  104;  Furmam  v.  Applegate, 
23  N.  J.  L.  28;  Kennedy  v.  Shea,  110 
Mass.  147;  14  Am.  Rep.  584;  Dalton 
V.  Moore,  5  Lans.  454;  Lawroiiccj  v. 
Spence,  29  Hun,  169;  99  N.  Y.  G69; 
Lavery  v.  Crooke,  52  Wis.  612;  38 
Am.  Rep.  768. 

'  Smifh  V.  Milbum,  17  Iowa,  30. 

«  WUaon  V.  State,  73  Ala.  527. 


1923       CRIMINAL   CONVERSATION   AND   SEDUCTION.      g  1111 


of  tho  seduction.'  But  noitlier  is  it  necussftry  to  prove  that 
tho  servant  becatno  pregnant.'^  Hero,  of  course,  the  loss 
of  service  is  clear.''  Where  the  direct  result  of  tho  seduc- 
tion is  a  loss  of  service,  tho  master  may  recover;  *  as 
where  the  seduction  altected  the  girl's  mind,  and  tho 
master  was  forced  to  keep  a  watch  on  her  and  give  her 
medical  attendance;'  whore  it  caused  bodily  injury  im- 
pairing her  health  and  her  caj  •  ity  to  labor;"  where  a 
venereal  disease  was  communicated  +o  the  girl,  injuring 
her  health.'  Evidence  that  the  daughter  appeared  strong 
and  well  before  the  alleged  seduction,  and  that  afterwards 
she  became  nervous  and  excitable,  and  did  not  appear  to 
bo  herself,  though  no  pregnancy  or  disease  ensued,  will 
justify  the  jury  in  finding  an  incapacity  to  work  as  the 
proximate  effect  of  the  seduction.*  But  a  h^ss  of  health 
caused  by  mental  suffering,  not  the  consequence  of  the 
seduction,  but  produced  by  subsequent  causes,  such  as 
her  abandonment  by  the  seducer,  shame  resulting  from 
exposure,  or  the  like,  is  too  remote  a  consequence  of  the 
seduction,  and  will  not  sustain  an  action."  So  where  a 
man  seduced  the  plaintiff's  daughter,  but  the  jury  found 
that  he  was  not  ^the  father  of  the  child  which  she  subse- 
quently bore,  it  was  held  that  there  was  no  cause  of  action 
against  him.***  Where  pregnancy  results,  the  action  may 
be  brought  before  the  birth  of  the  child." 


1  White  V.  Nellis,  31  N.  Y.  405;  88 
Am.  Dec.  282;  Hill  v.  Wilson,  8 
Blackf.  123. 

■'  White  V.  Nollis,  31  N.  Y.  405;  88 
Am.  Dec.  282;  Manvell  v.  Thomson, 
2  Car.  &  P.  303.  Contra,  Eager  v. 
Grimwood,  1  Ex.  61. 

^  White  V.  Nellis,  31  N.  Y.  405;  88 
Am.  Dec.  282. 

♦  Ingerson  v.  Miller,  47  Barb.  47. 

^Manvell  v.  Thomson,  2  Car.  &  P. 
303;  Van  Horn  v.  Freeman,  6  N.  J. 
L.  322. 

°  Abrahams  v.  Kidney,  104  Mass. 
222;  (j  Am.  Rep.  220. 

'  "Nor,  in  my  judgment,  does  the 
remedy  depend  upon  the  sex  of  the 


servant.  The  debased  woman  who  lurea 
to  lier  vile  embrace  an  innocent  boy, 
and  infects  him  with  loathsome  dis- 
ease, is  equally  liable  to  this  action  if 
an  injury  to  his  master's  right  to  ser- 
vice follow  from  her  crime  "  :  White 
V.  Nellis,  31  N.  Y.  405;  88  Am.  Dec. 
282 

^Blagge  V.  lUsey,  127  Mass.  191;  34 
Am.  Dec.  361. 

9  Knight  t'.  Wilcox,  14  N.  Y.  413; 
Boyle  V.  Brandon,  13  Mees.  &  W.  738. 

1"  Eager  v.  Grimwood,  1  Ex.  61. 

"  Briggs  V.  Evans,  5  Ired.  16.  "  The 
action  was  held  to  lie,  though  the 
daughter  had  not  been  actually  con- 
fined   before   action    brought,    and 


§  1112 


WRONGS   IN   DOMESTIC   RELATIONS. 


1924 


Illustrations.  —  A  minor  daughter  resided  with  her  father, 
and  was  engaged  as  a  school-teacher  under  an  agreement  made 
witli  him;  while  thus  employed  she  was  seduced,  became  preg- 
nant, and  died  suddenly  about  four  months  after  conception. 
A  post-mortem  examination  disclosed  a  dead  foetus,  and  a  con- 
gested brain,  caused,  as  it  was  supposed,  by  nervous  excitability 
or  extreme  mental  agitation.  Held,  that  as  a  matter  of  necessity 
she  must  have  been  in  no  physical  condition  to  render  services 
for  several  weeks  before  her  death,  the  action  was  maintainable 
by  the  father:  Ingerson  v.  Miller,  47  Barb.  47, 

§  1112,    Right  of  Action  by  Woman   Seduced.  —  No 

action  lies  at  common  law  by  a  woman  against  a  man  for 
seducing  her,  and  getting  her  with  child,  because  she 
cannot  complain  of  an  injury  to  which  she  consented; 
and  if  there  has  been  a  wrong,  she  is  particeps  criminis} 
There  might  be  special  circumstances  of  fraud  on  the  de- 
fendant's part,  which,  in  connection  with  the  seduction, 
would  support  an  action  for  damages  by  the  woman;  as, 
for  ex"  11}  .e,  the  seduction  of  an  innocent  woman  th'  jugh 
a  pretended  marriage  by  a  person  having  a  wife.'^  In  a 
Connecticut  case,  an  action  was  brought  by  a  girl  under 
age,  in  which  the  declaration  alleged  that  the  defendant 
fraudulently,  and  with  the  intention  of  getting  her  within 


though  the  plaintiff  had  voluntarily 
turned  her  out  of  his  house  upon  dis- 
covery of  her  pregnancy"  :  Per  Lord 
Deninan,  C.  J.,  in  Joseph  v.  Corvander, 
Wiuton  Sum.  Ass.,  1S.S4. 

'  Paul  y.  Frazier,  3  Mass.  71;  3  Am. 
Dec.  95;  Hamilton  v.  Loinax,  26  Barb. 
CI.");  .Sattertliwaite  v.  Dewhurst,  4 
Doug.  315;  Roberts  v.  Connelly,  14 
Ala.  235;  Woodward  r,  Anderson,  9 
Biish,  624;  Dennis  r.  Clark,  2  Cush. 
350;  48  Am.  Dec.  671;  Burks  v.  .Sliain, 
2  Bibb,  341;  5  Am.  Dec.  616;  Weaver 
V.  Bachert,  2  Pa.  St.  80;  44  Am.  Dec. 
159;  Conn  v.  Wilson,  2  Over.  233;  5 
Am.  Deo.  663;  Roper?-.  Clay,  18  Mo. 
383;  59  Am.  Dfc.  314;  Jordan  v. 
Hovey,    72    Mo.   574;     37  Am.  Rep. 

Richards,    29    Conn. 

r.    Frazier,   3  Mass. 

95,   Parsons,    C.    J., 

a    partaker   of    the 


447;  Smith  v. 
232.  In  Paul 
71,  3  Am.  Dec. 
said:   "She    is 


crime,    and  cannot  come  into  court 


to  obtain  satisfaction  for  a  supposed 
injury  to  which  she  was  comment- 
ing. It  has  been  regretted  at  the 
bar  that  the  la'v  has  not  provided  a 
remedy  for  an  unfortunate  female 
against  her  seducer.  Tiiose  ".vlio  are 
competent  to  logi.slate  on  this  subject 
will  consider  before  they  provide  tiiis 
remedy  whether  seductions  will  after- 
wards be  less  frequent,  or  whether 
artful  women  inny  not  pretend  to  be 
seduced,  in  order  to  obtain  a  pecuni- 
ary compensation.  As  the  law  now 
stands,  damages  are  recoverable  for  a 
breach  of  promise  of  marriage;  and  if 
seduction  has  been  practiced  under 
color  of  that  promise,  the  jury  Avill 
undoubtedly  consider  it  as  an  aggra- 
vation of  the  damages.  So  far  the 
law  has  provided,  and  we  do  not  pro- 
fess to  be  wiser  than  the  law. " 

'  Hutchinson  v.  Horn,  1  Ind.  363; 
50  Am.  Dec.  470. 


1925       CRIMINAL   CONVERSATION  AND   SEDUCTION.       §  1112 


his  power  for  purposes  of  prostitution,  she  being  then 
but  fourteen  years  of  age,  destitute,  without  relatives, 
and  in  the  care  of  a  charitable  society  in  New  York,  rep- 
resented to  her,  and  to  the  persons  who  had  her  in 
charge,  that  he  wanted  her  to  go  to  his  house  in  Connecti- 
cut, and  live  in  his  family  as  a  servant,  and  that  he  was 
a  suitable  person  to  take  charge  of  her  for  that  purpose; 
and  that,  with  the  advice  of  her  friends,  she  came  to  his 
house  with  him  for  the  purpose,  and  that,  while  she  was 
living  in  his  house,  the  defendant,  by  taking  advantage  of 
her  ignorance  and  dependence,  and  want  of  friends,  and 
of  her  fear  of  him,  persuaded  her  to  submit  to  carnal  in- 
tercourse with  him,  and  that  he  thus  debauched  her,  and 
ruined  b<=r  character  and  prospects  for  life.  It  was  held 
that  the  a':tion  was  maintainable.'  But  in  Missouri  an 
employer  persuaded  his  female  servant  to  consent  to  sex- 
ual intercourse  with  his  minor  son,  to  whom  she  was 
affianced.  The  son  subsequently  refused  to  marry  her. 
The  court  held  that  the  female  had  no  ground  of  action 
of  damages  against  the  employer  and  father.'^  By  statute 
in  some  states  the  action  has  been  given  to  the  woman 
seduced.^  A  statute  providing  that  "an  action  for  se- 
duction can  be  maintained  without  allegation  or  proof 
of  loss  of  service"  does  not  give  the  right  of  action  to  any 
other  persons  than  those  who  could  maintain  it  at  com- 
mon law.*  Where  the  action  is  given  to  an  unmarried 
woman,  the  fact  that  she  was  unmarried  at  the  time  of 
the  seduction  must  be  alleged,  and  also  proved.®  The 
l)laintiff's  subsequent  marriage  does  not  defeat  the  ac- 
tion;® but  husband  and  wife  may  sue  for  her  previous 


'  Smith  V.  Richards,  29  Conn.  232. 

2  Jordan  V.  Hovey,  72  Mo.  574;  37 
Am.  Kep.  447. 

^  Thompson  v.  Young,  51  Ind.  599; 
Cal.  Civ.  Code,  sec.  374;  Rev,  Code 
Ala.,  25,  29;  Ind.  Rev.  Stats.  187G,  p, 
4H.  See  note  to  Weaver  v.  Bachert,  2 
Pa.  St.  80,  in  44  Am.  Dec.  1G6. 


*  Woodward  v.  Anderson,  9  Bush, 
624;  but  see  Watson  v.  Watson,  49 
Mich.  540. 

*  Thompson  v.  Young,  51  Ind.  599; 
Grover  v.  Dill,  .S  Iowa,  337;  Galvin  v. 
Crouch,  65  Ind.  56;  Dowling  v.  Crapo, 
65  Ind.  209. 

«  Dowling  V.  Crapo,  65  lad,  209. 


■I.IHlflUHB  taWH^M 


riii3 


WRONGS  IN  DOMESTIC  RELATIONS. 


1926 


seduction/  A  state  statute  authorizing  a  woman  to  pros- 
ecute  an  action  for  her  own  seduction  gives  her  no  right 
of  action,  where  the  seduction  was  accomplished  in  an- 
other state,  although  the  illicit  intercourse  continued  in 
the  former.^ 


§  1113.  Right  of  Action  by  Father.  —  The  la^/  gives 
no  right  of  action  to  the  parent  as  such.  The  right  arises 
simply  when  the  child  is  living  with  the  parent,  or  he  is 
entitled  to  her  services  as  a  master  is  entitled  to  the  ser- 
vices of  a  servant.  Hence  the  action  is  not  maintainable 
upon  the  relation  of  parent  and  child,  but  solely  upon 
that  of  master  and  servant.^  The  relation  of  master  and 
servant  is  established  if  it  is  shown  that  the  parent,  at  the 
time  of  the  seduction,  had  the  right  to  control  the  services 
of  the  daughter.*  The  daughter  need  not  at  the  time  have 
been  actually  a  member  of  the  father's  household.  If  she 
w^ere  not  in  the  actual  service  of  another,  and  the  father 
had  a  right  to  recall  her  to  his  own  service,  he  may  main- 
tain the  action  the  same  as  if  she  actually  had  been  recalled 
or  returned.®  A  constructive  service  is  considered  to  arise 


» Wicell  V.  Blackford,  6  Baxt. 
141. 

■'  Buckles  V.  EUers,  72  Ind.  220;  37 
Am.  Rep.  15G. 

a  White  V.  Nellis,  31  N.  Y.  405;  88 
Am.  Dec.  282;  Bartley  v.  Richtmyer, 
4  N.  Y.  38;  54  Am.  Dec.  338;  Scott 
V.  Cook,  1  Duvall,  314;  Logan  v.  Mur- 
raj',  6  Serg.  &  R.  175;  9  Am.  Dec. 
422;  Pruitt  v.  Cox,  21  Ind.  15;  Grin- 
nell  r.  Wells,  7  Man.  &G.  1033;  South 
V.  Denniston,  2  vVatts,  474;  Manley  v. 
Field,  7  Com.  B.,  N.  S.,  90;  Harris  v. 
Butler,  1  Ex.  61;  Roberta  v.  Connelly, 
14  Ala.  235. 

*  Roberts  v.  Connelly,  14  Ala.  235; 
Briggji  n  Evans,  5  Ired.  16;  Wallaces. 
Clark,  2  Over.  93;  5  Am.  Dec.  654. 

^  C'ooley  on  Torts,  231 ;  Bolton  v. 
Miller,  6  Ind.  2o5;  Bartley  v.  Richt- 
myer, 4  N.  Y.  38;  53  Am.  Dec.  .^38; 
Martin  v.  Payne,  9  Johns.  387;  6  Am. 
Dec.  287;  Mulvehall  v.  Millward,  11 
N.  Y.  343;  Hornketh  v.  Barr,  8  Serg. 


&  R.  36;  11  Am.  Dec.  568;  Ken-ody 
V.  Shea,  110  Mass.  147;  14  Am.  lloii. 
584;  Van  Home  %\  Freeman,  G  N.  J. 
322;  Mercer  v.  Walmsley,  5  Har.  &  J. 
27;  9  Am.  Dec.  486;  White  v.  :\lurt- 
land,  71  111.  250;  22  Am.  Rep.  100; 
Roberts!'.  Connelly,  14  Ala.  231);  Up- 
degraf  v.  Bennett,  8  Iowa,  72;  ( W-etju- 
wood  V.  Greenwood,  28  Md.  .369;Cl;uk 
V.  Fitch,  2  Wend.  459;  20  Am.  Dec. 
639;  Stiles  v.  Telford,  10  Woixl.  ;!:]8; 
Blaggo  V.  Illscv,  127  Mass.  191;  .'U  Am. 
Rep.  361;  Wallace  v.  Clark,  2  Over. 
93;  5  Am.  Dec.  654;  Emery  v.  (io^xii, 
4  Me.  33;  16  Am.  Dec.  233;  Ckuk  r. 
Fitch,  2  Wend.  459;  20  Am.  Doc. 
639.  The  English  rule  is  more 
strict.  It  makes  the  right  dupcnil 
on  the  animus  rcvertcndi,  whcie  tlic 
daughter  is  living  away  from  lumic, 
though  still  subject  to  the  pareiit'.s  au- 
thority and  control :  Dean  r.  1 '(« I,  5 
East,  45.  In  Bartley  v.  Richtniyur,  4 
N.  Y.  38,  53  Am.  Dec.  338,  Brouaou, 


1927        CRIMINAL   CONVERSATION   AND    SEDUCTION.      §  1113 


in  favor  of  the  parent,  where  she  has  left  his  house  and 
is  in  another's  employ,  if  she  is  under  age,  "  inas- 
much as  he  has  the  right  to  control  her  conduct,  is  bound 
for  her  support,  and  may  at  any  time  revoke  her  leave 
of  absence  and  reclaim  her  services."  ^  So  where  the  in- 
fant daughter,  when  seduced,  is  only  absent  from  her 
father  upon  a  visit,  the  action  is  maintainable.^ 

But  if  the  daughter  is  in  the  service  of  another,  the 
master,  and  not  the  parent,  has  the  right  of  action."  A 
father  cannot  sue  for  seduction  of  his  minor  daughter 
whom  he  had  left  to  shift  for  herself,  and  who,«at  the  time 
of  the  seduction,  was  working  for  another  person  as  a 
household  servant;*  nor  when  the  daughter  is  of  full  age, 
and  not  living  in  the  father's  family,  but  in  the  actual 
employment  of  another  person,  though  working  under  a 
contract  made  by  her  father,  who  was  to  receive  her 
wages.^  And  the  parent  has  no  action  even  for  her  se- 
duction by  the  master  while  in  the  service  of  the  latter." 
But  if  the  defendant  procured  the  woman  to  enter  his 
service  fraudulently,  and  for  the  purpose  of  withdrawing 
her  from  her  family  and  seducing  her,  this  is  a  wrong 
which  precludes  his  claiming  any  rights  or  protection  as 
master,  and  the  parent  may  support  an  action  as  if  the 
hiring  had  never  taken  place.^  The  moment  an  actual 
service  of  the  daughter  with  another  is  terminated,  even 


C.  iT.,  says:  "Our  cases  stand  upon 
tliu  same  foundation,  with  only  this 
difference,  that  we  go  further  than  the 
English  courts  in  making  out  tlio  con- 
structive relation  of  master  and  ser- 
vant, and  liold  that  it  may  exist  for 
the  purposes  of  this  action,  although 
the  daughter  was  in  the  service  of  a 
third  person  at  the  time  of  the  seduc- 
tion, provided  the  ease  be  such  that 
the  father  then  had  a  legal  right  to 
her  services,  and  might  have  com- 
manded them  at  pleasure." 

'JJoyd  V.  Byrd,  8  Blackf.  113;  44 
An..  Dec.  740;  Bolton  r.  Miller,  GInd. 
200;  and  cases  in  last  note. 

■^  Griffiths  V.  Tcetgen,  15  Com.   B. 


344;  Bartley  v.  Richtmyer,  4  N.  Y. 
38;  53  Am.  Dec,  338. 

=*  Dean  v.  Peel,  5  East,  49;  Nickle- 
son  i:  Shyker,  10  Jolins.  115;  (5  Am. 
Dec.  318;  Dain  v.  Wyckolf,  7  N.  Y. 
191;  South  V.  Dennistou,  "2  Watts.  474; 
White  V.  Murtland,  71  111.  4.12;  L'2 
Am.  Rep.  100;  Kinney  v.  Laughenour, 
89  N.  C.  305. 

*  Ogborn  v.  Francis,  44  N.  .1.  L.  441; 
43  Am.  Rep.  394. 

^  McDaniel  r.  Edwards,  7  Ircd.  408; 
47  Am.  Dec.  331. 

«  Dain  r.  WyckoflF.  7  N.  Y.  191. 

'  Speight  V.  Oliviera,  2  Stark.  435; 
Dain  v.  Wyckoff,  18  N.  Y.  45;  72  Am. 
Dec.  493;  7  N.  Y.  191. 


§1113 


WRONGS    IN    DOMESTIC   RELATIONS. 


1928 


1929 


though  it  bo  wrongfully,  and  she  intends  to  return  to  her 
father,  he  has  a  right  to  her  services,  and  may  maintain 
the  action.^  The  seduction  of  a  female  apprentice  while 
she  is  a  minor,  and  after  her  master  turns  her  away,  or 
after,  with  the  consent  of  the  master,  her  return  to  reside 
with  her  father,  gives  the  latter  a  cause  of  action  against 
the  seducer.^  Where  the  relation  of  master  and  servant 
existed  at  the  time  of  seduction,  it  is  sufficient  evidence 
of  loss  of  service  caused  thereby  to  show  that  a  confine- 
ment took  place  in  the  house  of  a  third  person,  at  a  time 
when  either  the  right  to  the  service  was  continuing,  or, 
although  interrupted  by  an  intermediate  contract  of  ser- 
vice, had  again  risen  by  its  determination,  the  girl  se- 
duced having  had  at  such  time  an  animus  revertendi,  but 
not  carrying  out  her  intention  in  consequence  of  her  im- 
pending confinement.^  Where  a  female  has  been  seduced 
while  a  minor,  her  father  has  a  right  of  action  for  such 
seduction  after  she  attains  her  majority.  This  right  of 
action  is  not  taken  away  or  negatived  by  the  provision  of 
the  statute  which  gives  to  an  unmarried  female  the  right 
to  prosecute  an  action  for  her  own  seduction.* 

Illustrations.  —  A  verbally  agreed  with  B  that  his  daugh- 
ter should  live  in  B's  family  as  servant  until  her  arrival  at 
eighteen  years  of  age,  when  B  was  to  give  her  an  outfit,  and  in 
the  mean  while  was  to  provide  the  girl  with  board,  clothing,  and 
schooling,  and  at  a  proper  time  send  her  to  the  minister  for 
confirmation;  A  reserved  the  right  to  call  his  daughter  home, 
in  case  of  sickness,  to  help  the  family.  The  girl,  while  in  B's 
service,  was  seduced  by  C,  his  son.  Held,  that  this  parol  con- 
tract did  not  transfer  the  father's  right  to  service  beyond  recall, 
and  an  action  for  seduction  could  be  brought  by  A  against  C: 
Mohnj  V.  Hoffman,  86  Pa.  St.  358.  The  plaintiff's  daughter 
was  employed  by  a  third  person,  but  the  plaintiff  required  her 
to  spend  a  part  of  every  Sunday  at  home,  and  while  there  she 
did  work  for  him.  Held,  that  she  was  his  servant,  so  that  he 
could  maintain  the  action:  Kennedy  v.  Shea,  110  Mass.  147; 

'  Terry  v.  Hutchinson,  L.  R.  3  Q.  B.  *  Long  v.  Keightley,  5  Cent.  L.  J. 

599.  80. 

■•'  Emery  v.  Oowen,  4  Me.  33;    16  *  Stevenson  v.  Belknap,  6  Iowa,  97; 

Am.  Dec.  233.  71  Am.  Doc.  392. 


1929       CEIMINAL    CONVERSATION   AND   SEDUCTION.      §  1114 


14  Am.  Rep.  584.  A  parent  bound  her  daughter  as  :m  appren- 
tice, who  was  seduced,  upon  which  the  indentures  were  canceled 
by  consent,  and  the  daughter  returned  to  the  parent's  house, 
and  was  there  delivered  of  a  child.  Held,  that  the  parent 
might  maintain  an  action  on  the  case  for  the  seduction:  Sar- 
gent V.  ,  5  Cow.  106.  A  daughter  of  the  ng(^  of  nine- 
teen years,  with  the  consent  of  her  father,  vent  to  live  with 
her  luicle,  for  whom  she  worked  when  she  pleased,  and  he 
agreed  to  pay  her  for  her  work,  but  there  was  no  agreement 
for  her  continuance  in  his  house  for  any  time.  While  at  her 
uncle's  house  she  was  seduced  and  got  with  a  child,  and  imme- 
diately afterwards  returned  to  her  father's  house,  where  she 
was  maintained,  and  the  expense  of  her  lying-iii  paid  by  him, 
though  if  the  misfortune  had  not  happened  she  had  no  in- 
tention of  returning  to  her  father.  Held,  that  there  was  such 
a  constructive  service  on  behalf  of  the  father  as  entitled  him  to 
maintain  +lie  action  for  seductioa:  Martin  v.  Payne,  9  Johns. 
387;  G  Am.  Dec.  88. 

§  1114.  By  Mother.  — The  mother  after  tlic  father's 
death  may  maintain  an  action  for  the  seduction  of  a 
minor  daughter,  being  entitled  to  her  services.^  She 
may  sue  (according  to  some  authorities)  whore  the 
seduction  took  place  before  the  father's  death,  and  the 
confinement  afterwards;^  so  where  the  daughter,  though 
over  twenty-one,  is  rendering  services  to  the  widowed 
mother;*  so  wher^)  the  mother  has  been  deserted  by  her 
husband.^  To  entitle  a  mother  to  sue,  it  must  appear 
that  her  husband  is  dead,  or  that  the  custody  of  the  daugh- 
ter had  been  d'"creed  to  her,  and  that,  in  the  absence  of 
any  proof  that  the  relation  of  master  and  servant  existed 
between  them,  she  was  entitled  to  her  daughter's  services.® 

'  Coon  V.  Moffett,  3  N.  J.  L.  583;  4  Sneed,  59.  Contra,  lleinriclis  v.  Kerch- 
Am.  Dec.  392;  Furman  v.  Van  Sise,  ner,  35  Mo.  378;  Logiiu  v.  Murray,  6 
5GN.  Y.  435;  15  Am.  Kep.  441;  Gay  Serg.  &  R.  175;  9  Ai.i.  Dec.  4-23;  Vos- 
V.  Diirland,  51  N.  Y.  424;  50  Barb,  sel  v.  Cole,  10  Mo.  034;  47  Am.  Dec. 
100;  Keller  v.   Donnelly,  5  Mil.  211;  136. 

Sargent  v.  ,  5  Cow.   100;  Felkner  *  An  action  will  lio   iu   favor  of  a 

V.  Si'iirlet,     29    Inil.   154;    Blanchard  widowed    mother,    living     with    her 

r.  Illsey,  120  Mass.  487;  21  Am.  Rep.  daughter,    who    ia    ovor    twenty-one 

535.    Contra,    South    v.   Denniston,   2  years  of  age,  and  is   owner  of  the  es- 

Wattij,   474;  Bartley   i\  llichtmycr,  4  tablishment,    but   rjinlei's    aorvice  to 


N,  Y.  38;  53  Am.  Dec.  338,  Brouson, 
C.J. 

^  Coon  V.  Moffett,   3  N.  J.  L.  583;  4 
Ao.  Dec.  392;    Parker   v.    Meek,  3 


the  mother  and  family;  Villupigue  v. 
Shuler,  3  Strob.  402. 

*  Badgley  v.  Decker,  44  liarb.  577. 

» Hobson  V.  Fuliertou,  4  111.  App.  282. 


§1115 


WBONOS   IN   DOMESTIC  RELATIONS. 


1930 


Illustrations. — A  girl  of  twenty-four  years  of  age^  who 
after  her  father's  death,  resided  with  her  mother,  discharging 
domestic  duties  for  her,  was  seduced  in  her  mother's  house,  on 
the  night  previous  to  her  emigrating  to  America  in  pursuance 
of  previous  arrangements.  She  entered  into  another  service  on 
her  arrival  in  America,  but  subsequently,  finding  herself  preg- 
nant, left  that  service  in  order  to  return  home.  On  her  return 
to  Ireland,  she  went  to  reside  in  her  sister's  house,  where  she  re- 
mained until  her  confinement  had  taken  place,  a  considerable 
time  after  which  she  returned  to  the  house  of  her  mother,  who 
then  brought  an  action  for  the  seduction.  Held,  that  there  was  a 
loss  of  service  for  which  the  action  was  maintainable:  Long  v. 
Keightly,  5  Cent.  L.  J.  80.  The  plaintiflF's  husband  had  been 
absent  and  unheard  from  more  than  seven  years.  The  daugh- 
ter was  thirty-one  years  old.  The  testimony  on  the  part  of 
plaintiff  tended  to  prove  that  the  daughter  had  always  lived  at 
home  with  plaintiff,  had  assisted  her  about  her  household  work, 
had  done  errands  for  the  family,  had  worked  in  a  neighboring 
factory  most  of  the  time  since  she  was  fifteen  years  old,  and 
had  paid  her  wages  to  plaintiflF,  who  had  used  them  in  the  sup- 
port of  her  family,  A  verdict  was  directed  for  defendant. 
Held,  erroneous:  Davidson  v.  Abbott,  52  Vt.  570;  86  Am. 
Rep.  767.  D.  seduced  the  daughter  of  P.  The  daughter  was 
sixteen  years  old  and  in  P. 's  employ.  Her  father  was  dead,  and 
P.  had  remarried.  P.,  however,  controlled  and  supported  the 
daughter,  and  D.  had  always  accounted  to  P.  for  the  daughter's 
wages.  Held,  that  P.  had  a  right  of  action  for  the  seduction: 
Lamp-inan  v.  Hammond,  3  Thomp.  &  C.  293.  A  daughter 
at  the  age  of  eight  or  nine  years  left  the  residence  of  her 
mother,  at  the  suggestion  of  friends,  because  the  mother  was  a 
common  prostitute,  and  went  to  reside  in  the  family  of  the  de- 
fendant, where  she  continued  until  she  was  seventeen  or 
eighteen  years  of  age,  when  she  was  seduced  by  him,  and  left 
the  state  with  him,  and  went  to  Louisiana,  where  she  was  de- 
livered of  a  child.  From  the  time  she  left  her  mother's  house, 
there  was  no  intercourse  between  the  mother  and  daughter, 
and  the  mother  continued  to  be  a  prostitute.  Held,  that  tlie 
mother  could  not  maintain  the  action:  Roberta  v.  Connelly,  14 
Ala.  235. 

§  1115.  By  Other  Persons. — The  action  may  be  main- 
tained by  a  person  standing  inloco  parentisto  the  girl;'  as 
a  grandfather  of  an  infant  female  standing  in  locopareniis 

'  Ball  V.  Bruce,  21  111.  161;  Keller  338;  Davidson  v.  Goodall,  18  N.  H. 
V.  Donnelly,  5  Md.  211;  Bartley  v.  423;  Inmau  f.  Dearman,  11  East,  23; 
Bichtmycr,"  4  N.  Y.  38;  53  Am.  Dec.    Ingersoll  v.  Jonea,  5  Barb.  661. 


1931       CEIMINAL  CONVERSATION  AND  SEDUCTION.      §  1116 


who 


was  a 
he  de- 


ll 1 


main- 
irl;'  as 
areniis 

N.  H. 

East,  23; 
^1. 


to  her;*  a  cousin  who  has  furnished  her  a  home;''  an  aunt 
or  uncle  who  has  brought  up  the  girl;'  a  guardian;*  a 
step-father.*  Where  a  minor  step-daughter  leaves  the 
house  of  her  step-father,  and  is  seduced  while  in  the  ser- 
vice of  a  third  person,  the  step-father  cannot  maintain 
an  action  for  the  seduction,  although  before  tlie  birth  of 
her  child  she  returns  to  his  house,  engages  in  his  service, 
and  is  there  nursed  and  attended  during  her  confinement.® 
His  personal  representative  may  maintain  an  action  for 
the  seduction  in  the  father's  lifetime.' 

Illustrations. —  The  woman  seduced  resided  at  the  time  in 
the  family  of  a  married  sister  without  paying  for  her  board, 
but  with  no  agreement  with  her  father  or  herself  for  any  pay- 
ment for  services.  Held,  that  the  sister's  husband  could  not 
sue  as  master  for  her  seduction:  Blanchard  v.  Jlslcy,  120  Mass. 
489;  21  xVm.  Rep.  535.  The  girl  seduced  had  a  mother  living, 
but  had  not  heard  from  her  father  for  fourteen  years,  and  sup- 
posed him  dead;  she  had  lived  in  the  plaintiff's  family  most  of 
the  time  since  she  was  seven  years  old,  and  the  plaintiff  had 
taken  her  to  bring  up;  that  she  was  treated  by  him  like  one 
of  his  own  children,  and  worked  for  him  as  they  did,  and  was 
supported,  and  clothed,  and  educated  by  him,  and  taken  care 
of  by  him  during  her  sickness,  and  he  paid  the  expenses  of  her 
lying-in.  Held,  that  the  plaintiflF  stood  in  loco  parentis,  and 
might  maintain  thc^  action,  although  the  girl  at  the  time  of  her 
seduction  lived  and  worked  in  the  family  of  another  with  the 
plaintiff's  assent:  Ingersoll  v.  Jones,  5  Barb.  661. 

§  1116.  Where  Woman  is  of  Age.  —  Where  the  daugh- 
ter is  over  twenty-one,  the  father  may  mantain  an  action 
for  her  seduction,  if  she  lives  in  his  house,  and  he  can 
command  her  services,*  even  though  at  the  time  of  the 


'  CertwcU  v.  Hoyt,  6  Hun,  575;  13 
N.  Y.  570. 

■'  Davidson  v.  Goodall,  18  N.  H.  423. 

^  Mativell  V.  Thomson,  6  Car.  &  P. 
3015;  Edmonson  v.  Mitchell,  2  Term 
Reii.  4. 

<  Forusler  v.  Moyer,  3  Watts  &  S. 
41G;  31)  Am.  Dec.  33;  Palmer  v.  Oak- 
ley, 2  Doug.  (Mich.)  433;  47  Am.  Dec. 
41.  Contra,  Blanchard  v.  Ilsley,  120 
Mass.  487;  21  Am.  Rep.  535. 

°  Maguiuay  v.  Saudek,  5  Sneed, 
146.    Though  the  daughter  is  the  ille- 


gitimate child  of  hia  wife:  Bracy  v. 
Kibbe,  31  Barb.  273. 

6  Bartley  v.  Richtmyer,  4  N.  Y.  88; 
53  Am.  Dec.  338. 

^Noice  V.  Brown,  39  N.  J.  L. 
569. 

8  West  w.  Strouse,  38  N.  J.  L.  184; 
Vessel  V.  Cole,  10  Mo.  G.34;  47  Am. 
Dec.  136;  Lipe  v.  Eiseulerd,  32  N.  Y. 
229;  Kendrick  v.  McCrary,  11  Ga. 
603:  Wilbert  v.  Hancock,  5  Bush,  507; 
Mercer  V.  Walmsley,  5  Har.  &  J.  27;  9 
Am.  Dec.  486. 


§§  1117,  Ills      WRONGS   IN   DOMESTIC   RELATIONS.  1032 

se(lucli<.>ii  s1j(  was  temporarily  absent.'  Where  she  livog 
in  liis  hou-(;,  tlio  ])rcsumption  is  tliat  she  renders  services, 
or  that  he  can  commantl  thetn.'^  But  in  the  case  of  an 
adult  awa}'  from  home,  clearer  proof  of  service  is  re- 
quired.'  An  1  the  mere  permission  of  the  master  of  an 
adult  servant  allowing  her  after  work  to  assist  her  mother 
does  not  give  the  latter  any  right  of  action.''  The  father 
may  sue,  after  she  reaches  twenty-one,  for  her  seduction 
while  a  minor.^ 


§  1117.  Statutory  Remedy.  —  Statutes  in  several  states 
allow  suits  for  seduction  to  be  brought  for  the  benelit  of 
the  woman  herself,  some  near  relative  or  a  guardian 
being  sulForcd  to  bring  it,  aad  all  allegations  of  loss  of 
service  being  dispensed  with." 

§  1118.  Defenses.  — If  the  parent  consent  to  the  se- 
duction either  actually  or  impliedly,  as  by  introducing 
the  daughter  to  profligate  persons,  or  permitting  her  to 
keep  company  with  such  people,  or  encouraging  or  con- 
niving  at  the  seducer's  acts,  this  is  a  bar  to  the  action.' 


1  Lipo  V.  Eirfoiilji-d,  .32  N.Y.  229. 

^  III.;  Bro\v;i  r.  II unsay,  29  N.  J.  L. 
US;  Huakin^  r.  Haskins,  22W.Va. 
645.  At  any  rate,  very  slight  evi- 
dence of  service  ii  sullicient:  Emery  r. 
Gowon,  4  ]\Ic.  o'o;  10  Am.  Dec.  2.'W; 
Voosel  i<.  Cole,  10  Mo.  034;  47  Am. 
Dec.   130. 

^  NicI;lcsoa  v.  Stryker,  10  Johns. 
115;  0  Am.  Dec.  319;  Patterson  v. 
Thompson,  24  Ark.  55;  Lee  ?).  Hodges, 
13  tiratt.  720;  Miller  r.  Thompson,  1 
Wend.  447;  Bi'ig'.53  v.  Evans,  5  Ired. 
21;  Mercer  r.  Walmslcy,  5  liar.  &  J. 
27;  9  Am.  Dec.  4S0. 

*  Thompson  r.  Rosa,  5  Hurl.  &  N. 
10. 

^  Stevenson  v.  Belknap,  G  Iowa, 
97;  71  Am.  Dec.  392. 

*  Updegraff  v.  Bennett,  8  Iowa,  72; 
Ga.  Code,  3009;  Iowa  Code,  sec.  2555; 
Mich.  Comp.  L.  1871,  1700;  Scott  v. 
Cook,  1  Duvall,  314. 

'  Reddie  v.  Scoolt,  1  Peake,  316; 
Seagar  v.   Sligerlaad,  2  Caiues,  219; 


Vossell  t'.  Cole,  10  Mo.  634;  47  Am. 
Dec.  136;  Travis  v.  Barger,  24  Bi.b. 
614;  Smith  v.  Mastin,  15  Wend.  270; 
Graham  v.  Smith,  1  Edw.  Ch.  2 17; 
Richardson  I'.  Fouts,  11  ind.  400;  HmI- 
lis  V.  Wells,  3  Pa.  L.  J.  109,  tlio  court 
saying:  "  This  action  is  al\vay.s  fimiul- 
ed  on  a  wrong  done  I)y  tho  defendiint, 
and  as  regards  tho  will  and  consent  of 
tho  father,  the  daughter  is  .supposed 
to  bo  violated  with  force.  It  is  this 
absence  of  consent  on  his  part,  tliia 
violation  of  his  daughter's  chastity 
against  his  will,  that  entitles  iiini  to 
sustain  his  action  for  a  compensation 
in  damages.  When  the  criminal  iater- 
courso  has  been  had  with  his  knowl- 
edge and  under  his  connivance,  lie 
would  seek  redress  with  but  an  ill 
grace  indeed.  He  would  not  actually 
he  a,  pai'ticeps  criminiH,  but  in  want  of 
decency  and  in  breach  of  parental  iluty, 
he  would  approach  very  near  to  it. 
His  indiflference  to  his  daughter's 
morals  and  chastity  would  meet  with 


1933         CRIMINAL   CONVERSATIOX   AND    SEDUCTION.      §  1119 


Merc  negligence  on  the  parents*  part,  when  not  amount- 
ing  to  connivance,  may  be  shown  in  mitigation  of  dam- 
ages,^ but  is  not  a  bar.^  Tliat  the  plaintiff  allowed  the 
defendant,  a  married  man,  to  visit  his  daughter  as  a  suitor, 
and  placed  her  in  exposed  situations,  does  not  debar  him 
from  maintaining  an  action  for  the  seduction,  unless  he 
knew  the  defendant  to  be  married.*  It  is  no  defense  that 
the  defendant  was  an  infant;'*  or  that  ho  is  liable  to  a 
criminal  prosecution  for  the  aet;*^  or  that  (in  an  action  by 
a  parent)  there  has  been  a  recovery  in  a  former  suit  by 
the  daughter;®  or  that  the  defendant  subsequently  married 
the  girl  (the  action  being  brought  by  the  parent);^  or 
that,  after  the  seduction,  the  plaintiff  married  a  person 
other  than  the  defendant;*  or  that  she  consented  to  the 
intercourse;®  or  that  the  girl  was  unchaste;^"  or  that  the 
act  was  done  without  her  consent,  and  was  not  seduction, 
but  rape." 

§  1119.  Damages  —  Measure  of.  —  The  damages  are 
not  restricted  to  the  loss  of  service  and  the  expense  con- 
sequent thereon.  Proof  of  the  relation  of  master  and 
servant,  and  of  the  loss  of  service  by  means  of  the  wrong- 
ful act  of  the  defendant,  has  relation  only  to  the  form 
of  the  remedy,  and  the  action  being  sustained  in  point 
of  form  by  the  introduction  of  these  technical  elements. 


but  a  just  retribution  in  her  misfortune 
and  disgrace.  The  fault  would  be  as 
much  his  own  as  her's  or  her  seducer's; 
and  his  assurance  in  coming  to  court 
to  ask  for  a  reward  for  the  perpetra- 
tion of  a  wrong  which  was  known  to 
him,  and  which  he  might  have  pro- 
vented,  would  justify  the  belief  that 
lie  iiiul  no  objections  to  its  commis- 
sion." And  a  custom  of  "bundling," 
that  is,  for  persons  courting  to  sleep 
togetlier,  cannot  be  set  up  as  a  defense: 
Stagar  r.  Sligerland,  2  Caines,  219; 
Holhs  r.  Wells,  .3  Pa.  L.  J.  169. 

'  Graham  n.  Smith,  1  Edm.  Sel.  Cas. 
2G7;  Parker  v.  Elliott,  6  Munf.  587. 

'  Id. ;  Zerting  v.  Mourer,  2  G.Greene, 
520;  Travis  v.  Barger,  24  Barb.  614. 


^  Richardson  v.  Fonts,   1 1  Ind.  466. 

*  Lee  V.  Heiley,  21  lad.  98. 

^  Klopfer  V.  Broume,  26  Wis.  372; 
Eicher  v.  Kistlcr,  14  Pa.  St.  282;  53 
Am.  Dec.  551. 

sPruittv.  Cox,  21  Ind.  15. 

'  Eicher  v.  Kistlcr,  14  Pa.  St.  282; 
53  Am.  Dec.  551.  But  this  fact  is  rel- 
evant in  mitigation  of  damages;  Id. 
Nor  is  a  release  from  the  daughter  a 
bar:  Sellars  v.  Kidner,  1  Head,  134; 
Gimbel  v.  Smidth,  7  Ind.  627. 

"  Dowling  V.  Crapo,  65  Ind.  209. 

»  McAulay  v.  Birkhead,  13  Ired.  28; 
55  Am.  Dec.  427. 

'»  Smith  V.  Milburn,  17  Iowa,  30; 
Harrison  v.  Price,  22  Ind.  165. 

"  Ante,  §  1110. 


§1120 


WRONGS   IN   DOMESTIC   RELATIONS. 


1034 


the  (liimages  may  bo  given  as  a  compensation  to  the 
plttintilf,  not  only  for  tlio  loss  of  service,  but  also  for  till 
that  the  plaintiff  can  feel  from  the  nature  of  the  injury,' 
This  includes  the  disgrace  cast  upon  tho  family,  and  tlio 
distress  of  mind  of  the  parent  at  his  daughter's  fall,  and 
these  juries  are  accustomed  to  compensate  with  heavy 
damages."  Either  parent  may  recover  vindictive  or  ex- 
omplary  damages;'  but  one  not  a  parent  or  in  loco 2)ar cu- 
tis, but  merely  the  master,  can  only  recover  for  his  actual 
loss  of  service.*  The  mother  cannot  recover  compensation 
for  the  support  and  maintenance  of  the  daughter's  illegit- 
imate child.'*  But  the  allowance  by  law  to  the  daughter 
for  the  bastard's  support  does  not  affect  the  parent's  dam- 
ages;'^ nor  the  fact  that  by  statute  the  daughter  is  allowed 
to  sue  for  the  same  seduction.''  The  cost  of  medicine  and 
medical  attendance  is  recoverable,  whether  the  father  has 
paid  for  them  or  not;  but  no  recovery  can  be  had  for  the 
wounded  feelings  of  his  family,  nor  of  exemplary  dam- 
ages,  where  the  intercourse  was  caused  as  much  by  the 
misconduct  of  the  daughter  as  of  the  man.®  The  moas- 
ure  of  damages  is  for  the  jury,  whose  discretion  will 
be  rarely  interfered  with." 

§  1120.    Evidence —  In  General. —  On  the  question  of 
damages,  evidence  of  the  situation  in  life  and  circum- 


»  Phelin  v.  Kenderdine,  20  Pa.  St. 
.S54;  Lipo  v.  Eiseiilerd,  32  N.  Y.  229, 
236;  Clark  /•.  Fitch,  2  Wend.  459; 
20  Ain.  Dec.  C.*^9:  Stiles  v.  Tilford, 
10  Wend.  338;  Pruitt  v.  Cox,  21 
Ind.  15;  Felkner  v.  Scarlet,  29  lud. 
154;  Phillips  v.  Hoyle,  4  Gray, 
5GS;  Graljlo  v.  Margrave,  4  111.  372; 
38  Am.  Dec.  88;  White  v.  Murtland, 
71  111.  250;  22  Am.  Rep.  100;  Ken- 
drickr'.  McCrary,  11  Ga.  603;  Elling- 
ton V.  Ellington,  47  Miss.  329;  Fox  v. 
Stevens,  13  Minn.  272;  Stevenson  v. 
Belknap,  6  Iowa,  97;  71  Am.  Dec. 
392. 

^  Cases  in  last  note;  and  see  Steven - 
sou  V.  Belknap,  C  Iowa,  97;  71  Am. 


Dec.  392;  Rollins  v.  Chalmers,  51  Vt. 
592;  Taylor  v.  Shellkctt,  66  Ind.  297; 
Barbour  v.  Stephenson,  32  Fed.  Kep. 
66. 

"  Knight  V.  Wilcox,  18  Barl).  2\'2; 
Damon  i*.  Moore,  5  Lansi.  454;  Bad^'ky 
V.  Decker,  44  Barb.  577;  McAulay  -•. 
Birkhead,  13  Ired.  28;  55  Am.  Dec. 
427. 

*  Lipe  V.  Eisenlerd,  .S2  N.  Y.  229. 

*  Hitchman  v.Wliitney,  9  Hitn,  ■)!2. 
"  Sellars  v.  Kinder,  1  Head,  1.'54. 

^  Stevenson  v.  Belknap,  6  Iowa,  97; 
71  Am.  Dec.  392. 

8  Comer  v.  Taylor,  82  Mo.  341. 

"  Stevenson  v.  Belknap,  6  Iowa,  97; 
71  Am.  Dec.  392. 


1935        CRIMINAL   CONVERSATION    AND   SEDUCTION.      §  1121 

stances  of  the  parties  is  relevant.*  So  is  cvidcnco  of  tho 
good  chanietcr  of  both  plaintiff's  and  defendant's  families.'^ 
The  circumstances  under  which  the  girl  was  seduced,  and 
the  means  used  to  seduce  her,  may  be  shown.^  Testimony 
relating  directly  to  facts  bearing  on  the  relations  of  tho 
persons  whoso  conduct  is  in  question  is  admissible  as  part 
of  the  rc8  gcstic*  as  familiarities  which  may  or  may  not 
have  been  innocent,®  and  evidence  is  admissible  of  a  con- 
nection between  the  girl  and  defendant  beyond  the  period 
of  three  years  from  the  commencement  of  the  suit.  All 
defendant's  intercourse  with  her  is  but  one  transaction, 
and,  with  all  the  circumstances  of  the  case,  should  go  to 
tlio  jury,  both  to  prove  whether  the  defendant  is  father 
of  the  child,  and  to  show  the  extent  of  the  injury  in 
aggravation  of  damages."  The  dying  declarations  of  tho 
woman  who  died  in  childbirth,  that  the  defendant  was 
the  father  of  the  child,  are  not  admissible.'  The  fact  that 
a  man  ran  away  six  weeks  after  he  was  accused  of  se- 
ducing a  woman  does  not,  in  her  action  against  him,  con- 
stitute any  evidence  of  his  guilt.* 

§  1121.  Evideiice  in  Aggravation.  —  Any  facts  not 
too  remote  may  be  shown  in  aggravation  of  damages ;'■* 
as  the  relationship  between  the  plaintiff  and  the  one 
seduced,  the  situation  of  the  family,  etc; '"  that  defendant 


'  Andrews  v.  Askey,  8  Car.  &  P.  9; 
McAulay  v.  Birkhoad,  13  Ired.  28;  55 
Am.  Dec.  427;  Grable  v.  Margrave, 
4  111.  372;  38  Am.  Dec.  88;  Rea  v. 
Tucker,  51  111.  110;  99  Am.  Dec.  539; 
White  V.  Murtlaiid,  71  111.  260;  22 
Am.  Rep.  100;  Wilson  v.  Shepler,  86 
Ind.  275. 

^Parker  ».  Monteith,  7  Or.  277, 
the  court  saying:  "It  was  competent 
for  the  respondent  to  show  that  while 
it  was  his  duty  to  be  watchful  over 
the  morals  of  his  daughter,  he  was 
nevertheless  justified  in  permitting 
that  degree  of  social  intimacy  between 
her  and  the  appellant  which  is  always 
allowable  between  the  different  sexea 


in  good  families,  but  which  would  not 
have  been  tolerated  had  he  belonged 
to  a  family  which  was  low  or  de- 
graded. " 

»  Bracy  v.  Kibbe,  31  Barb.  273. 

*  Threadgool  v.  Litogot,  22  Mich. 
271. 

*  Watson  V.  Watson,  58  Mich.  507. 
'  Thompson  v.  Clendening,  1  Head, 

287. 

'  Wooten  V.  Wilkins,  39  Ga.  223;  99 
Am.  Dec.  456. 

^  Hopkins  V.  Mathias,  60  Iowa,  333. 

»  He  wit  V.  Prime,  21  Wend.  79;  Fox 
V.  Stevens,  13  Minn.  272;  Thompsoa 
V.  Clendening,  1  Head,  287. 

"  Wilson  V.  Sproul,  3  Pa.  St.  49. 


§  1122 


WRONGS   IN   DOMESTIC   RELATIONS. 


1930 


visited  licr  as  a  suitor,  and  used  arts,  flatteries,  persua- 
sions, and  i)romisos  of  marriage  to  induce  her  to  luivo 
coniiectiDii  with  him;'  or  that  tlie  defendant  procurcil 
an  ahortioii  on  tlie  woman. ^  The  jury  may,  in  assessing' 
damages,  take  into  consideration  the  plaintiff's  feoHngs, 
pain,  and  liumiliation  in  giving  birth  to  the  child,  but 
not  the  cure  and  cost  of  maintaining  and  educating  it.^ 
But  in  an  action  by  the  parent,  evidence  of  a  promise 
of  marriage  by  the  defendant  is  not  admissible;'*  nor  of 
■what  the  plaintiff  told  the  woman  he  was  worth.*^ 

§1122.  Evidence  in  Mitigation.  —  That  others  had 
criminal  intercourse  with  the  girl  is  admissible  in  miti- 
gation  of  damages."  So  is  evidence  that  the  girl,  prior  to 
the  seduction,  was  loose  in  language  and  conduct,  and 
kept  loose  compaay,''  or  of  her  general  character  for 
chastity;^  or  that  the  parent  was  negligent;"  or  that  the 
defendant  subsequently  married  the  girl;"'  but  not  her 
subsequent  character  and  acts."     Where  the  father  sues. 


'  Stevensou  r.  Belknap,  6  Iowa,  97; 
71  Am.  Dif.  .'>!)2;  Rudsell  v.  Cham- 
liiTs.  in  Minn.  M. 

-  Kloppor  r.  iJroinme,  20  Wis.  372; 
White  i'.  Miutlaml,  71  111.  250;  22 
Am.  Rep.  100. 

^  Wilds  r.  ]]o^'an,  57  Iml.  453. 

MHllet  r.  Mea.l,  7  Weml.  194;  22 
Am.  Dec.  'uS;  Wells  v.  Padgett,  8 
Bail).  .327;  IJrowuell  i'.  McEwen,  5 
Deuio,  308;  Clark  v.  Fitch,  2  Wend. 
459;  20  Am.  Dec.  039;  Foster  v.  Scof- 
field,  1  .fulnis.  299;  Wliitncy  v.  El- 
mer, 00  Bu'l).  2.10;  Hayncs?'.  Sinclair, 
23  Vt.  lOS;  Comer  v.  Taylor,  82  Mo. 
.341.  (7o»^n/,  White  r.  Campbell,  13 
Gratt.  573;  Phelin  v.  Kcuderdino,  20 
Pa.  St.  354. 

'-  Wat.sf.n  r.  Watson,  53  Mich.  108; 
51  Am.  Rep.  111. 

«  Wiiite  r.  Murtland,  71  111.  250;  22 
Am.  Rep.  100;  Smith  v.  Milburn,  17 
Iowa,  30;  Verry  v.  Watkins,  7  Oar.  & 
P.  308;  Shattuek  v.  Myers,  13  lud.  47; 
74  Am.  Dee.  230.  But  aliter  if  de- 
fendant did  not  know  it:  Lea  v.  Hen- 
derson, 1  Cold.  140.  The  woman's 
chastity  prior  to  the  alleged  seduction 


is  not  to  be  presumed,  but  is  a  fact  to 
bo  proved:  Bailey  y.  O'Baunon,  28  Mo. 
App.  39. 

'  Carpenter?).  Wall,  1 1  Ad.  &  E.  80.1. 
Testimony  that  the  girl  had,  prcvidua 
to  the  time  of  the  alleged  seductie.i, 
introduced  another  parry  to  her  pa- 
rents as  her  hunbaiul  i.s  immatL'rinl  us 
not  tending  to  .show  unehaMte  conduct: 
Burtis  r.  Chambers,  Td  Iowa,  04."). 

»  Wallace   v.  Clark,  2  Over,    m-,  5 
Am.  Dec.  054;  Carder  /.'.  Forehand,  1 
Mo.  704;  14  Am.  Dec.   317;  Wliitr 
Murtland,  71  111.   250;  22    \u.  I 
100;  Watry  v.    Ferber,   18  i; 

86  Am.  Dec.  789.  Byg. 
tion,  but  not  by  her  repi 
a  particular  class  of  pei. 
Davenport,  2  Stew.  200.  > 
tion  of  a  girl's  reputation  for 
one  may  testify  that  ho  never  la;.  I 
anything  against  it,  and  that  he  'lovcr 
heard  it  talked  about:  State  v.  Bryan, 
34  Kan.  03. 

^Seo  ante,  §  11  IS. 

'0  Eicher  v.  Kistler,  14  Pa.  St.  282; 
53  Am.  Dec.  551. 

"  McKern  v.  Calvert,  59  Mo.  243. 


.iiiiong 
Dri.sh  /'. 
ihefjiii- 

cliasti-    , 


i037       CRlMIJfAL   CONVERSATIOV   Avn   . 

«SATION  AND  SEDUCTION.      §1123 


OVlflenCO  of    his    hnrl   nl, 

P-ra,  .put:,;'!  I'r::-/';,  ?"*>'""«  ''^  K^-f  -r 

"■'"'"  ■'»'  show,  to  havTl,!,  ■•"'""etion  of  ,|„,„,,,,,,, 

'■'^  reputed  wife,  is  void  iraZi!,    >         '  '"""''"S"  "ith 
I""'.  '»  rebut  a  pro,ump  io    "7     "  ^"  '''•'«'"''""'s 

....'  tl,at  the  plainti/fwas  2  Io/m  ""'  ""■"™'  ^i'  ^''"'v. 

"-;  -,<^  in  ."itigatiorordLS  •^. """""' '" ""  -^- 

■"■'  fo,.  chastity;'  or  of  l^to  J  !    '"%*^""'^--"  ™"»"'- 
'';'«  keen  „o  attempt  to  imnoachi,       ■"'"'' '''"'"  "'"« 
'■'•-"eter  ia  that  0}  a  «,o"est  „  1  ^  ?' """  '"'«»'-"'" 
*";'"™<'  girl  may  refuse  t„     ,     1  '""""«  """'•"    'n>o 
!''""'f  «''0  had  eo„„eotio°,  '    th  o,,"'"'""''""'"'""'"". 
'''»»'  i>cr  bad  character  or    „    '     ,  ."""'  "'""'■•  '» 

»""e-'C3  refuse  to  testify  as  to  1,  '         ."'  ^""■"    «°  ">«y 
"«'ion  with  her." ,        ^       '"  ''"""8  ^ad  criminal  con- 

S1123.    Pleadins  —  Tt,„     .-.• 

■  :r[.<s  S"»™.  ^ «--.  5S0;  Bit?:'  Al?'?^-"^; 

^2-  ^'       ^"^'^''-^^cht,  72  Iowa.  579. 


§1123 


WRONGS  IN   DOMESTIC   RELATIONS. 


1938 


The  complaint  r.iay  allege  the  time  of  the  acts  of  con- 
nection with  a  continuando,  and  evidence  may  be  offered 
for  any  time  covered  by  the  complaint.*  Special  damage 
need  not  be  alleged.'^  If  the  declaration  avers  the  daugh- 
ter to  be  the  plaintiff's  servant,  it  is  good,  although  the 
averment  of  the  daughter's  infancy  is  omitted.^  A  de- 
claration alleging  that  the  daughter  was  under  twenty- 
one,  and  unmarried,  at  the  time  of  the  seduction,  and  that 
the  plaintiff  then  was  and  still  is  entitled  to  her  attentions 
and  services,  is  a  sufficient  averment  of  the  relation  of 
iiasterand  servant.*  Under  a  count  setting  up  generally 
loss  of  her  service,  he  may  recover  for  his  mental  suffer- 
ing caused  by  the  wrong."  But  the  parent  must  allege 
and  prove  that  the  debauching  was  the  result  of  seduc- 
tion.® Where  an  action  is  brought  in  the  name  of  the 
mother,  and  the  declaration  alleges  that  she  is  authorized 
to  bring  it,  but  makes  no  claim  for  the  loss  of  services, 
it  will  be  regarded  as  the  statutory  action  for  the  injury 
to  the  daughter,  and  the  mother  cannot  recover.^  An 
averment  of  previous  chastity,  or  of  good  repute  for 
chastity,  is  not  essential  to  the  complaint  in  an  action  by 
an  unmarried  woman  for  her  own  seduction.®  Nor  need 
the  complaint  particularly  describe  the  means  used  to 
effect  the  seduction,  nor  need  it  aver  that  the  woman 
relied  on  the  seducer's  promi'^es.' 


^  Lemmon  v.  Moore,  94  Ind.  40. 
The  complaint  charged  the  seduction 
as  having  occurred  at  a  certain  date. 
There  had  been  successive  acts  of  in- 
tercourse, all  under  an  engagement 
to  marry,  and  the  date  named  was 
that  of  the  last  act.  Held,  that  the 
jury  might  consider  the  separate  acts 
as  the  elements  oi  the  wrong  con- 
summated in  the  last,  in  which  case 
there  would  be  no  variance:  Hay- 
mond  V.  Saucer,  84  Ind.  3. 


*  Mcllvain  v.  Emery,  88  Ind.  298. 

^  Applegatd  V.  Ruble,  2  A.  K.  ^larsh. 
!28. 

*Clem  V.  Holmes,  33  Gratt.  ?22; 
36  Am.  Rep.  793;  Riddle  v.  McQL- 
nis,  22  W.  Va.  253. 

^  Lunt  V.  Philbriclr,  59  N.  H.  59. 

^  Smith  V.  Young,  26  Mo.  App.  575, 

'  Ryan  v.  Fralick,  50  Mich.  483. 

8  Hodges  V.  Bales,  102  Ind.  494. 

•Hodges  V.  Bales,  102  Ind.  494j 
Brown  v.  Kingsley,  38  Iowa,  220. 


1939 


INJURIES   FROM   INTOXICATING   LIQUORS. 


1124 


CHAPTER  LVII. 


INJURIES  FROM  INTOXICATING  UQUORS. 


§  11-24. 
§  1125. 
§  1126. 


§  1127. 

§  1128. 
§1129. 
§  1130. 
§1131. 
§  1132. 
§  1133. 
§  1134. 
§  1135. 
§  1136. 
§1137. 
§  1138. 
§1139. 
§  1140. 
§  1141. 
§  1142. 


Injuries  from  intoxicating  liquors  —  Civil  damage  laws. 

Group  one  —  Statutes  of  Maine,  Connecticut,  and  Indiana. 

Group  two — Statutes  of  Arkansas,  Massachusetts,  Missouri,  New 
Hampshire,  Nebraska,  North  Carolina,  Pennsylvania,  Rhode  Isl- 
and, Vermont,  and  West  Virginia. 

Group  three  —  Statutes  of  Illinois,  Iowa,  Kansas,  Michigan,  New 
York,  Ohio,  and  Wisconsin. 

Liability  absolute  —  Lawfulness  of  sale  immaterial. 

Who  liable  —  Master  and  servant  —  Principal  and  agent. 

Joint  liability. 

Liability  of  owner  or  lessor  of  premises. 

Who  may  sue  —  In  general. 

Injuries  to  person. 

Injuries  to  property. 

Injuries  to  means  of  support; 

Exemplary  damages. 

Remote  damages. 

Mitigation  of  damages  —  Evidence. 

Evidence  in  general. 

Law  and  fact. 

Pleading. 

Defenses. 


§  1124.  Injuries  from  Intoxicating  Liqaors  —  Civil 
Damage  Laws.  —  Within  recci  t  years  in  a  number  of  the 
states,  statutes  have  been  pas  ,ed  giving  to  the  husband, 
wife,  parent,  child,  or  guardian,  and  sometimes  to  other 
parties,  for  injuries  done  by  intoxicated  persons,  the  right 
to  mainidn  actions  against  the  person  or  persons  who  may 
have  sold  or  given  the  liquors  which  caused  the  intoxica- 
tion. Also  for  injuries  to  means  of  support;  for  the  ex- 
pense and  trouble  of  caring  for  the  intoxicated  person; 
and  for  other  injuries  and  losses  which  are  particularly 
pointed  out  in  the  statutes.* 

'  T^.  King  V.  Henkie,  80  Ala.  505,  ceased  person  cannot,  under  the 
60  Am.  Rep.  119,  it  was  held  that  statute  authorizing  an  action  to  be 
tiie  personal  representative  of  a  de-    brought  for  a  wrongful  aut  or  omis< 


mm 


§1125 


WRONGS    IN    DOMESTIC    RELATIONS. 


1940 


§  1125.    Group  One  —  Statutes  of  Maine,  Connecticut, 
and  Indiana.  —  The  Maine  law  of  1858  contained  a  gon- 


sion  causing  the  death  of  another 
(CoJo  Ala.,  sec.  SOU),  maintain  an 
action  against  a  retailer  of  intoxicat- 
ing lii^uors  who  sells  or  gives  them  to 
a  man  of  known  intemperate  habits 
who  is  helplessly  cli-imk  at  the  time, 
anil  the  drinking  of  which  causes  liis 
death  almost  instantaneously.  Tiio 
court  tluuriht  that  the  proximate 
cause  of  the  death  was  not  the  selling, 
bi;t  the  drinking  of  tliL;  liquor,  a»id 
that  the  contrilnitory  negligence  of 
tiie  deceased  was,  besides,  a  sullicieut 
bar.  The  court  say:  "The  selling 
or  giving  away  of  spirituous,  vinous, 
or  malt  liquors,  in  any  quantiiies 
whatever,  to  persons  of  known  iuteni- 
piMuto  habits,  except  upon  the  requisi- 
tion of  a  physican  for  medicinal  pur- 
poses, is,  ill  this  state,  made  .a  misde- 
meanor, and  a  license  to  sell  or  retail 
afl'ords  no  ])rotectio:i  to  the  guilty 
party:  Code  187(i,  see.  4l!0.J.  The  fore- 
going section  of  our  code  (sec.  2li4:l), 
like  many  similar  statutes  in  other 
American  states,  was  evidently  mod- 
eled after  what  is  commonly  known 
in  Enj;laiul  as  Lord  Campbell's  Act, 
9  &  10  Vict.,  c.  9:5,  enacted  by  the 
British  Parliament  in  the  year  1S4G. 
T'iie  language  there  use<l  was  that, 
'^Vhonsoever  the  death  of  a  person 
Bhall  Ijc  caused  l)y  (any)  wrongful  act, 
ueylcct,  or  deSault,  and  the  act,  ne- 
glect, or  default  is  such  as  would  (if 
death  had  not  ensued)  have  entit^led 
the  pirty  injured  to  maintain  an  ac- 
tion and  recover  damages  in  respect 
thereof,  then,  and  in  every  such  case, 
tlie  person  who  Mould  have  been 
lial)!e,  if  death  had  not  ensued,  shall 
l)e  liable  to  an  action  for  damages, 
iiotwithstauding  the  death  of  the  per- 
son injured,  and  although  the  death 
shall  have  been  caused  under  such 
ciiTiimstances  as  amount  in  law  to 
felony.'  The  purpose  of  this  and  like 
legislation  was  clearly  to  correct  a  de- 
fect of  the  common  law,  by  which  it 
was  well  settled  that  a  right  of  action 
based  on  a  tort  or  injury  to  the  per- 
Bou  diftd  with  the  person  '"jured. 
Under  this  maxim,  Acf/o  pt'>mnalls 
innritur  cum  persona,  the  personal  rep- 
reaeutativc    of     a    deceased     person 


could  maintain  no  action  for  loss  or 
damage  resulting  from  his  death: 
Hallenback  v.  R.  R.  Co.,  9  Cush. 
480;  Quinn  v.  Moore,  15  N.  Y. 
430.  The  reason  for  the  rule  was  said 
by  Baron  Parke,  in  a  case  arising  be- 
fore him  under  the  English  statute, 
to  be,  that,  in  the  eye  of  the  connnou 
law,  'the  value  of  life  was  so  gieat 
as  to  bo  incapable  of  being  estimated 
by  money.'  The  rule  probably,  how- 
ever, rests  on  .a  broader  basis.  These 
statutes,  it  will  be  observed,  each  give 
a  right  of  action  only  in  cases  where 
the  deceased  himself,  if  the  injury  had 
not  resulted  in  his  death,  might  have 
sustained  a  recovery.  They  contiiuie, 
in  other  words,  for  the  benefit  of 
specific  distributees  '  a  right  of  ac- 
tion which,  at  common  law,  would 
have  terminated  at  the  death,  and 
enlarge  its  scope  to  embrace  the  in- 
jury resulting  from  the  death  ':  Cooley 
on  Torts,  *JGi.  The  condition  that  the 
action  must  bo  one  which  could  have 
been  nuiiutained  by  the  deceased,  had 
it  failed  to  produce  death,  or  had  not 
death  ensued,  has  no  reference  to  the 
nature  of  the  loss  or  injury  sustained, 
or  the  person  entitled  to  recover,  but 
to  the  circumstances  attending  the  in- 
jury, and  tho  nature  of  the  wrongful 
act  or  omission  which  is  made  the 
basis  of  the  action;  .Saunders  on  Neg- 
ligence, 219;  South  and  North  Ala.  R. 
R.  Co.  V.  Sullivan,  59  Ala.  272,  •-81. 
As  said  in  Whitford  r.  R.  R.  Co.,  23 
N.  Y.  405,  where  a  similar  phrase  in 
the  New  York  statute  was  construed, 
it  '  is  inserted  solely  for  tho  purpose 
of  defining  tho  kind  and  degrees  of 
delinquency  with  which  the  defend  uit 
nuist  be  chargeable  in  order  to  subji^ct 
him  to  tho  action.'  It  necessarily  fol- 
io vvs,  and  has  been  accordingly  de- 
cided with  great  uniformity  l)y  the 
courts,  that  where  the  negligence  of 
the  person  killed  has  contributed 
proximately  to  the  fatal  injury,  no 
action  can  bo  maintained  by  his  per- 
sonal representative  under  this  statute, 
becau-;e  the  deceased  himself  would 
•lot  have  been  entitled  to  recover  had 
the  injury  not  proved  fatal:  Cooley 
on  Torts,   304;    8auaders    on    Negli* 


1941  INJURIES   PROM   INTOXICATING   LIQUORS.       §  1125 


eral  provision  that  any  person  not  authorized  undor  the 
act  selling  intoxicating  liquors  should  be  liable  for  all 


gence,  215;  1  Addison  ou  Torts,  Wood's 
cd.,  p.  021,  sec.  575;  Savannah  etc.  R. 
R.  Co.   V.  Shearer,  58  Ala.  672.      Wo 
first   observe  that  the   case  made  by 
the  complaint  does  not  seem  to  us  to 
fall    within    the  letter     or    spirit  of 
the  statute,  and   the  court  below  so 
decided  on  the  demurrer.     The  death 
of  the  deceased  was  not  '  caused '    so 
much  by  the  wrongful  act  of  the  de- 
fendants in  selling    him  whisky,    as 
l)y  his  own  act  in  drinking  it  after 
being  sold  to  him.     The  only  wrong- 
ful act  imputed  to  the  defendants  was 
the  selling  or  giving,  as  the  case  may 
be,  of  intoxicating  liquors  to  the  da- 
ceased  while    he  was   in   a  stupidly 
drunken  condition,    knowing  that  he 
was  a  man  of  intemperate  habits.      It 
is  not  shown  that  the  defendants  used 
any    duress,    deception,    or    arts    of 
persuasion  to  induce  the  drinking  of 
the  liquor.     The  act,  however,  as  wo 
have    said,    was    a   statutory  misde- 
meanor.    But  tliis  was  only  the  re- 
mote, not  the  proximate  or  intermedi- 
ate, cause  of  the  djath  of  plaintiff 'a 
intestate.     The  rule  is  fully  settled  to 
be,  that  '  if  an  injury  has  resulted  in 
consequence  of  a  certain  wrongful  act 
or  omission,    but  only  through  or  by 
means    of    some    intervening    cause, 
from  which  last  cause  the  injury  fol- 
lowed as  a  direct   and  immediate  con- 
sequence, the   law  will  refer  the  dam- 
age to  the  last  or  proximate  cause, 
and  refuse  to  trace  it  to  that  which 
was  more  remote':  Cooley  on  Torts, 
G8,  G!);  1  Addison  on  Torts,  12, 13,  sees. 
10,  11.  The  statute  under  consideration 
was  not  intended  to  annul,  butratlier 
to  preserve,  this  rule  of  the   common 
law,  so  necessary  to  the  certainty  and 
justice    of    its    administration,    that 
tliure  must  be  some  proximate  con- 
nection between  the  wrong  done  and 
tlio  damage  claimed  to  result  from  it, 
—  that  the  two   must  be   sufficiently 
conjoined  oo  as  to  be   'concatenated 
as  cause    and  efifoct,'  as   often  said. 
IL'.d  it  not  been  for  the  drinking  of 
tliu  licpior  after  the  sale,  which  was  a 
secondary  or    intervening    cause   co- 
operating to  produce  the  fatal  result, 
and  was  the  act  of  deceased,  not  of 


defendants,  the  sale  itself  would  have 
proved  entirely  harmless.      Hence  it 
cannot  be  said  that  the  wrongful  act 
of  the  defendants  in  making  the  sale 
caused  the  dcatli  of  King,  but  rather 
his  own  act  in  drinking  it.     And  this 
must  be  true,    whatever  the  condition 
of  his  mind,  or  state  of  his  intellect, 
and  without  regard  to  the  question  of 
any  contributory    negligence    on  his 
part.     The  case,  we  repeat,  is  one  not 
covered  by  the  statute.     The  plaintitf 
is,  moreover,  in  our  opinion,  del)aired 
from    recovery   by  the    contributory 
negligence  of  the  deceased,   even  ad- 
mitting that  the  wrongful  act  of  the 
defendants  caused  the  death  of  King. 
It  is  shown  that  the  deceased  was  help- 
lessly drunk  when  he  purchased  and 
drank  the  liquor,    so  much  so  as  to 
reader  the  exercise  of  ordinary  care 
by  hi  .I  impracticable,  if  not  impo.s.si- 
ble.      The  presumption  is,  that  this 
condition  was  brought   about   by  his 
own  voluntary  or  negligent    act,  by 
the  persuasion  or  coercion  of  another. 
If  we  admit  that  the   state  of    niiiid 
thus  produced  was  analogous  to  that 
of  one   noil  compos  or  insane,  so  that 
the  deceased  was  in  mental  darkness, 
and  so    unconscious  as  to  be  at  the 
moment  incapalie    of    knowledge  or 
consent,  thus  rendering  him  morally 
unaccountable,  yet  the  fact  confronts 
us  that  this  condition  was  the  result 
of  his  own  negligence  or  wantonness, 
and    without    it   the    accident  of  his 
('  ath    would   not   probably  have    oc- 
c'w  -ed.    The  deceased,  by  the  exercise 
of  ordinary  care,  might  have  cscupi'd 
making  himself  helplessly  drunk.    iJy 
not  doing  so  he  was  the  author  of  his 
own  doatJi,  in  view  of  the  fact  that  it 
does  not  appear  that  the  defendants, 
after  the    fatal    tlraught    was  taken, 
could,    by  the   exercise   of    ordinary 
care,    or    even    by    any    practicable 
means  at  hand,  have  avoided  the  con- 
sequences of  death,  which  aVnost  i-i- 
stantly  followed.    This  involved  every 
element  of    contributory   neg'*gence, 
and  was    sufficient  to  prevent  a  re- 
covery by  the  deceased   had  death  not 
ensued:       Railway     Accident      Law 
(Patterson),  14;  Illinois  Cent.  R.  R. 


§  1125 


WRONGS   IN   DOMESTIC   RELATIONS. 


1942 


injuries  committed  by  the  person  to  whom  the  liquor  was 
sold,  while  intoxicated,  to  be  recovered  in  an  action  on 
the  case;^  and  a  statute  of  Connecticut  contains  a  some- 
what similar  provision.'^  A  statute  of  Indiana,  passed  in 
1853,  but  repealed  two  years  later,  gave  a  like  remedy;^ 
limited,  however,  to  a  suit  on  the  bond  of  the  vendor,* 
and  to  the  case  of  a  licensed  retailer."  In  1873  an  act 
was  passed,  giving  to  the  wife,  child,  parent,  husband, 
guardian,  employer,  or  other  person  a  right  of  action,  for 
injuries  caused  to  them  by  the  sale  of  intoxicating  liquors, 
against  the  seller,  and  the  landlord  of  the  premises  where 
the  sale  took  place.  This  was,  however,  repealed  in  1875 
by  an  act  which  restricts  the  right  of  action  to  damages 
caused  by  sales  in  violation  of  law." 


Co.  V.  Cragen,  71  111.  177;  Cramer  v. 
Burlington,  42  Iowa,  315;  Wharton 
on  Negligence,  sec.  332.  We  have 
thus  hypothetically  admitted  the 
contention  of  appellant's  counsel, 
that  one  drunk  to  unconsciousness 
is  to  be  placed  upon  the  same 
ground  as  infants  of  tender  years, 
persons  tion  compos  or  insane,  so 
far  as  concerns  the  question  of 
plaintiflF's  contributory  negligence. 
The  contrary  of  this,  however,  would 
seem  to  be  true,  as  the  basis  of  the 
rule  governing  the  latter  classes  is 
that  of  moral  accountability.  Im- 
beciles, lunatics,  and  infants  are  not 
accountable  morally  for  the  states  of 
their  minds,  and  yet  the  law  govern- 
ing the  subject  of  contributory  negli- 
gence, even  as  applicable  to  them,  is 
admitted  to  bo  in  a  very  unsatisfac- 
tory and  doubtful  state:  Cooley  on 
Torts,  680-G82.  A  drunkard,  or  one 
in  a  state  of  voluntary  intoxication, 
can  scarcely  claim  so  much  charity 
from  the  law  in  this  particular  as 
imbeciles  and  lunatics,  because  he  has 
l>y  his  own  agency,  either  wantonly  or 
negligently,  brought  about  his  own 
misfortune.  As  drunkenness  is  no 
excuse  for  crimes,  or  for  torts,  no 
more  should  it  be  a  basis  for  the 
liability  of  another  in  an  action 
brought  against  him  by  the  victim  of 


such  inebriety.  The  caseof  McCue  v. 
Klein,  CO  Tex.  168,  48  Am.  Rep. 
2G0,  referred  to  by  appellant's  counsel 
as  an  authority  to  support  the  present 
action,  although  analogous  to  it  iu 
some  respects,  is  broadly  distinguish- 
able from  it  in  one  important  particu- 
lar. There  the  death  of  the  duceaaed 
was  brought  about  by  the  defendants 
conspiring  together  to  induce  and  per- 
suade the  deceased  to  swallow  a  large 
amount  of  whisky,  he  being  already 
so  drunk  as  to  be  deprived  of  his  rea- 
son and  to  be  rendered  incapable  of 
resistance,  the  draught  being  thus  im- 
posed upon  him  in  his  helpless  con- 
dition. The  case  was  made  to  rest  on 
the  ground  that  the  administration  of 
the  deadly  draught,  like  that  of  a 
noxious  drug,  was  an  assault,  the  de- 
ception by  which  it  was  accomplished 
being  a  fraud  on  the  party  s  will, 
equivalent  to  force  in  overpowering  it: 
Com.  V.  Stratton,  114  Mass.  303;  19 
Am.  Rep.  330." 

'  Me.  Rev.  Stats.  1871,  p.  304,  sec. 
32. 

•^  Rev.  SUts.  1887,  sec.  3101. 

"  Act  of  March  4,  1853,  p.  88,  sec. 
10. 

♦  Martin  v.  West,  7  Ind.  657. 

5  Struble  v.  Nodwift,  11  Ind.  65. 

^  Indiana  act  of  March  17,  1875. 
(Acts  Special  Session,  1875,  p.  55). 


1943 


INJUMES   FROM   INTOXICATING   LIQUORS. 


1126 


§  1126.    Group  Two^ — Statutes  of  Arkansas,  Massa- 
chusetts,  Missouri,   New  Hampshire,    Nebraska,  North 


'  Arkansas,  —  An  act  applying  to 
Washington  Joiinty  only  provides  that 
"every  husband,  wife,  parent,  guar- 
dian, employer,  or  other  person  who 
ehall  bo  injured  in  person  or  property, 
or  means  of  support,  by  any  intoxi- 
cated person,  or  in  consequence  of  the 
intoxication  of  any  person,  habitual  or 
otherwise,  shall  have  a  right  of  action 
in  his  or  her  own  name,  severally  or 
jointly,  against  any  person  or  persons 
who  shall,  by  selling  or  giving  intoxi- 
cating liquors  in  said  county  of  Wash- 
ington, in  whole  or  in  part,  of  such 
person  or  persons,  and  recover  full 
damages":  Laws  1873,  p.  385. 

Massachusetts.  —  "If  a  person  in  a 
state  of  intoxication  commits  an  as- 
sault and  battery,  or  injures  prop- 
erty, whoever  furnished  him  with 
any  part  of  the  liquor  which  occa- 
sioned his  intoxication,  if  the  same 
was  furnished  in  violation  of  this  act, 
shall  be  liable  to  the  same  action  by 
the  party  injured  as  the  person  intox- 
icated would  be  liable  to;  and  the 
party  injured,  or  his  or  her  legal  rep- 
resentative, may  bring  either  a  joint 
action  against  the  person  intoxicated 
and  the  person  who  Jurnished  the 
liquor,  or  a  separate  action  against 
either.  Whoever,  by  himself  or  his 
agent  or  servant,  shall  sell  or  give 
intoxicating  liquor  to  any  minor,  or 
allows  a  minor  to  loiter  upon  the 
premises  where  such  sales  are  made, 
shall  forfeit  one  hundred  dollars  for 
each  offense,  to  be  recovered  by  the 
parent  or  guardian  of  such  minor  in 
ail  .iction  of  tort.  The  husband,  wife, 
parent,  child,  guardian,  or  employer 
of  any  person  who  has,  or  may  here- 
after have,  the  habit  of  drinking  spir- 
ituous or  intoxicating  liquor  to  excess, 
may  give  notice  in  writing,  signed  by 
hiiii  or  her,  to  any  person,  requesting 
him  not  to  sell  or  deliver  spirituous  or 
intoxicating  liquor  to  the  person  hav- 
ing such  habit.  If  the  person  so  noti- 
fied, at  anytime  within  twelve  months 
thereafter,  sells  or  delivers  any  such 
li(luor  to  the  person  having  such  habit, 
or  permits  such  person  to  loiter  on  liis 
premises,  the  person  giving  the  notice 
nuiy,  in  an  action  of  tort,  recover  of 


tho  person  notified  such  sum,  not  less 
than  one  hundred  nor  more  than  five 
hundred  dollars,  as  may  bo  assessed  as 
damages;  provided,  the  employer  giv- 
ing said  notice  shall  be  injured  in  his 
person  or  property.  A  married  woman 
may  bring  such  action  in  her  own 
name,  and  all  damages  recovered  by 
her  shall  inure  to  her  separate  use. 
In  case  of  the  death  of  either  party, 
the  action  and  right  of  action  shall 
survive  to  or  against  his  executor  or 
administrator":  Stats.  1875,  p.  (568, 
sees.  14,  15,  16.  A  subsequent  section 
provides  that  "the  terms  'intoxicating 
liquor,' or  'liquors,'  in  this  act  shall 
be  construed  to  include  ale,  porter, 
strong  beer,  lager-beer,  cider,  and  all 
wines,  as  well  as  distilled  spirits ": 
Sec.  18.  The  notice  under  this  stat- 
ute need  not  folow  its  exact  language: 
Kennedy  v.  Saunders,  142  Mass.  9.  It 
need  not  state  that  the  husband  is  in 
the  habit  of  drinking  to  excess:  Tate 
V.  Donnavan,  143  Mass.  590. 

Missouri.  — The  statutes  rcqiiire  of 
every  dram-shop  keeper  a  bond,  and 
provides  that  if  ho  shall  "  sell,  give 
away,  or  otherwise  dispose  of,  or  suffer 
the  same  to  be  done  about  his  prem- 
ises, any  intoxicating  liquors,  in  any 
quantity,  to  any  minor,  without  the 
permission  of  the  parent,  master,  or 
guardian  of  sucli  minor  lirst  had  and 
obtained,"  he  shall  forfeit  and  pay  to 
such  parent,  master,  or  guardian,  for 
every  such  offense,  fifty  dollars,  to  be 
recovered  by  civil  action,  or  in  the 
name  of  the  county  on  the  btmd:  Gen. 
Stats.  1865,  p.  421,  sec.  20. 

New  llampshire.  —  "If  the  husband, 
wife,  parent,  child,  brother,  sister,  or 
other  near  relative,  guardian,  or  em- 
ployer of  any  person  who  has  the  habit 
of  drinking  spirituous  liquors  to  excess 
shall  give  notice  in  writing,  by  him  or 
her  signed,  to  any  person  not  to  fur- 
nish any  spirituous  liquor  to  the  person 
who  has  such  habit;  if  the  person  so 
notified  shall  furnish  any  spirituous 
liquor,  for  a  consideration  or  other- 
wise, to  the  person  who  has  such 
habit,  at  atiy  time  within  one  year  after 
such  notice  given,"  the  persmi  giving 
the  notice  may  recover  not  less  thau 


KB 


§1126 


WRONGS    IN   DOMESTIC    RELATIONS. 


10^14 


Carolina,  Pennsylvania,  Rhode  Island,  Vermont,  and  West 
Virginia. —  In   Arkansas,  ^lassachnsetts,  Missouri,  Now 


fifty  dollars  nor  more  than  five  hun- 
dred dollars:  Rev.  Stats.  1867,  p.  210, 
sec.  22.  "  Whenever  any  person  in  a 
Btate  of  intoxication  sliu]!  connnitany 
injury  upon  the  person  or  property  of 
any  other  individual,  any  person  who, 
by  himsulf,  his  elerk  or  servant,  shall 
Lave  uulavvfuUy  sold  or  furnished  any 
part  of  the  liquor  causing  such  intox- 
ication shall  be  liable  to  the  party 
injured  for  all  damage  occasioned  by 
the  injury  so  done,  to  be  recovered  in 
the  same  form  of  action  as  such  in- 
toxicated person  would  be  liable  to, 
and  both  such  parties  may  be  joined  in 
the  ^ame  action;  and  in  case  of  the 
death  or  disability  of  any  person, 
either  from  the  injury  received  as 
herein  specified,  or  in  consequence  of 
intoxication  from  the  use  of  liquor 
unlawfully  furnished  as  aforesaid,  any 
person  who  shall  be  in  any  manner 
dependent  on  such  injured  person  for 
means  of  support,  or  any  party  on 
whom  such  injured  person  may  be 
dependent,"  may  recover  all  damaj,'e 
or  loss  in  consequence  thereof  from  the 

f)ersou     unlawfully    furnishing      the 
iquor:  Laws  1870,  p.  403. 

It'ebm.du.  — ' '  The  person  so  licensed 
shall  pay  all  damages  that  the  commu- 
nity or  individuals  may  sustain  in  conse- 
quence of  such  traffic;  he  shall  support 
all  paupers,  widows,  and  orphans,  and 
the  expenses  of  all  civil  and  criminal 
prosecutions  growing  out  of  or  justly 
attributable  to  his  retail  traffic  iu  in- 
toxicating drinks;  said  damages  and 
expenses  to  be  recovered  in  any  court 
of  competent  jurisdiction  by  any  civil 
action  on  the  bond  named  and  re- 
quired in  section  five  hundred  and 
sevcuty-two,  a  copy  of  which,  prop- 
erly authenticated,  shall  be  taken  in 
evidence  in  any  court  of  justice  in 
this  state;  and  it  shall  be  the  duty  of 
the  county  clerk  to  deliver,  on  de- 
mand, such  copy  to  any  person  who 
may  claim  to  be  injured  by  such 
traflic.  It  shall  be  lawful  for  any 
married  woman,  or  other  person  at 
her  request,  to  institute  and  maintain, 
in  her  own  name,  a  suit  on  any  such 
bond  for  all  damages  sustained  by 
herself  and  children  on  account  of 
such  traific,  and  the  money  when  col- 


lected  shall  bo  paid  over  for  the  use  of 

herself  and  children On  tlic 

trial  of  any  suit  under  the  provisiims 
hereof  the  cause  or  foundation  of  whith 
shall  be  the  acts  done  or  injuries  in- 
flicted by  a  person  under  tlie  inihi- 
enee  of  liquor,it  shall  only  be  nece.'ssiii'y 
to  sustain  the  action  to  prove  that  the 
defendant  or  defendants  sold  or  gave 
liquor  to  the  jjci'son  ."c  intoxicated,  or 
under  the  inlluence  of  liquor,  wIkisu 
acts  or  injuries  are  complauiecl  of,  on 
that  day  or  about  that  time  when  said 
acts  were  committed  or  said  iiijuii j.s 
received;  and  in  an  action  for  dam- 
ages brought  by  a  married  woman,  or 
other  person  whose  support  1 'gaily 
devolves  upon  a  ]jerson  disqualilied  hy 
intemperance  from  earning  the  .samo, 
it  shall  only  be  necessary  to  prove 
that  the  defendant  has  given  or  sol  1 
intoxicating  drinks  to  such  person  in 
quantities  sufficient  to  produce  intox- 
ication, or  when  under  the  inllucri "e 
of  liquor":  Gen.  Laws  1873,  p.  853, 
sees.  570,  577,  579. 

North  Carolina,  —  "The  father,  or  if 
he  be  dead,  the  mother,  guardian,  or 
employer,  cf  any  minor  to  whom  ssalu 
or  gifts  shall  be  made  iu  violation  of 
this  act,  shall  have  a  right  of  autimi 
in  a  civil  suit  against  the  person  or 
persons  so  oQending  by  such  salc.i  or 
gifts;  and  upon  proof  of  any  sucli  illi- 
cit sales  or  gifts,  shall  recover  from 
such  party  or  parties  so  ofiomliag 
such  exemplary  damages  as  a  jury 
may  assess,  provided  such  assessnuuit 
shall  be  not  less  than  twenty-five  dol- 
lars": Laws  1873-74,  p.  94,  sec.  2. 

Pennsylvania.  —  "  The  husliainl, 
wife,  parent,  child,  or  guardian  of  i;ny 
person  who  has,  or  may  hercal'tcr 
have,  the  habit  of  drinking  intoxicat- 
ing  liquor  to  excess  may  give  noticu 
in  writing,  signed  by  him  or  hur,  to 
any  person  not  to  sell  or  deliver  in- 
toxicating liquor  to  the  person  liavir.ji 
such  habit;  if  the  i)erson  so  uotilit;d 
at  any  time  within  twelve  months 
after  such  notice  sells  or  delivLrs 
any  such  liquor  to  the  person  having 
such  habit,  the  person  giving  the 
notice  may,  in  an  action  of  tort,  re- 
cover of  the  person  notified  any  sum 
not  less  than  fifty  nor  more  than  five 


1945 


INJURIES   FROM    INTOXICATING    LIQUORS. 


112G 


Hampshire,  Nebraska,  NovHi  Carolina,  Pennsylvania, 
Rhode  Island,  Vermont,  and  West  Virginia,  statutes 
somewhat  similar  in  effect  are  in  force. 


hundred  dollars,  as  may  bo  assessed 
by  tlio  court  or  judge  as  damages.  A 
m;iri'iud  woiiiaii may  Ijriiig  sueli  action 
ill  licr  own  nuiiu;,  notwithstanding  her 
covurture,  and  all  damages  recovered 
by  her  shall  go  to  her  separate  use. 
Ill  ca^e  of  the  death  of  cither  party, 
tliu  action  and  right  of  action  given 
liy  iliis  section  shall  survive  to  or 
a^.iinst  his  executor  or  administrator 
wit'.iout  limit  as  to  damages":  Laws 
]S1'},  \).  41,  sec.  7. 

llliodf,  Ifluiiil. — -"If  any  person  in 
a  state  of  intoxication  commits  any 
iiijui'3'  to  the  person  or  property  of 
iiiKithur,  the  person  who  furnished 
hiiu  with  any  part  of  the  liquor 
which  occasioned  his  intoxication,  if 
the  same  was  furnished  in  violation 
of  this  act,  shall  bo  liable  to  the 
same  iietiou  by  the  party  injured  as 
the  person  intoxicated  would  be  lia- 
ble to;  and  the  ])arty  injured,  or  his 
orlii'i'  k'^jiil  rcp;-e.;eiitative,  may  bring 
cither  a  joint  at'tion  against  the  per- 
bn:i  intoxicated  and  the  person  who 
furnished  the  lirjuor,  or  a  separate  ac- 
tion ay.iinst  either."  "The  husband, 
wife,  parent,  child,  guai'dian,  or  em- 
pliiycr  of  any  person  who  has,  or  may 
lieieiftcr  have,  the  habit  of  drinking 
iiitiixicating  liquor  to  excess  may  give 
notice  in  writing,  signed  by  him  or 
liLi',  to  any  jierson,  requesting  him  not 
to  roll  or  deliver  spirituous  or  intoxi- 
cating li([Uor  to  the  person  having  such 
liiibit.  It  the  person  so  notified  at 
any  time  within  twelve  months  there- 
after sells  or  delivers  any  such  liquor 
to  the  ])erHon  having  such  habit,  or 
perniits  sucii  person  to  loiter  on  his 
premises,  tiie  person  giving  the  no- 
tice may,  in  an  action  of  trespass  on 
tlic  case,  recover  of  the  person  noti- 
tic(l  such  sum  as  may  be  assessed  as 
(liuii.ige^,  provided  the  employer  giving 
s:ii(l  notice  sliall  be  injured  in  his  per- 
son, business,  or  property.  A  married 
wonuui  may  I)ring  such  action  in  her 
own  name,  and  all  damages  recovered 
by  her  shall  inure  to  lier  separate  use. 
Ill  case  of  the  death  of  either  jmrty, 
the  action  and  right  of  action  shall 
surrive  to  or  against  his  executor  or 


aflministrator":  Laws  187'),  p.  24,  sees. 

Vrnnont.  —  "Wlienevcr  any  person 
by  reason  of  intoxication  shall  couimit 
or  cause  any  injury  upon  tlu;  person  or 
property  of  any  other  indiviuual,  any 
person  who,  by  himself,  his  eUu'k  or 
servant,  shall  have  unlawfully  .sold  or 
furnished  any  part  of  the  li(pU)r  caus- 
ing such  intoxication  shall  he  liable 
to  the  party  injured  for  all  damage 
occasioned  by  the  injury  so  do.io,  to 
be  recovered  in  the  same  form  of  ac- 
tion as  such  intoxicated  person  would 
be  liable  to;  and  both  such  parties 
may  be  joined  in  the  same  actioii,  and 
in  case  of  the  death  or  disahility  of 
any  person,  either  from  the  injury  re- 
ceived as  herein  specilie  1,  or  in  conse- 
quence of  intoxication  from  the  use  of 
li(luors  unlawfully  furnished  a^  afore- 
said, any  person  who  shall  I)e  in  any 
manner  dependent  on  such  injured 
person  for  means  of  support,  or  any 
party  on  whom  such  injured  person 
may  be  dependent,  may  recover  from 
the  person  unlawfully  selling  or  fur- 
nishing any  such  liquor  as  aforesaid 
all  damage  or  loss  sustained  in  conse- 
quence of  such  injury,  in  any  court 
having  jurisdiction  in  such  eaucs;  and 
coverture  or  infancy  shall  l)on()  bir  to 
proceedings  for  recovery  in  any  case 
arising  under  this  act,  and  no  person 
shall  be  disqualified  as  a  witiics  by 
reason  of  the  marriage  relatio-i  in  any 
proceeding  under  this  act":  Act  of 
1809,  Amended  Laws  1S74,  p.  T; '. 

West  Virij'mia.  —  "Any  hu  hand, 
wife,  child,  parent,  or  guaniian  may 
serve  upon  any  person  cngiigi  1  in 
the  sale  of  intoxicating  liqims  a 
written  notice  not  to  sell  or  fK:iiisli 
such  liquors  to  the  wife,  luu!':ind, 
child,  parent,  or  ward  of  the  ]'ci'son 
giving  such  notice;  and  theieii tcr, 
if  the  person  so  served  wi:h  ;:ueh 
notice  shall,  by  himself  or  aiiuiher, 
sell   or   furu'"''-   such   liquors   to   the 

Eerson  named  in  such  notice,  and 
y  reason  thereof  the  person  t.i  whom 
such  liquor  is  sold  or  furnished  i-liall 
become  intoxicated,  and,  while  in  that 
condition,  do  damage  to  another,  or 


§§  1127,  1128     WRONGS  IN  DOMESTIC  RELATIONS.  1946 

§  1127.    Group   Three  —  Statutes    of  Illinois,    Iowa, 
Kansas,  Michigan,  New  York,  Ohio,  and  Wisconsin.  —  lu 

Illinois,*  Iowa,''  Kansas,'  Michigan,*  New  York,^  Ohio," 
and  Wiscon?  a,'  the  statutes  give  a  right  of  action  for  the 
consequence  of  the  intoxication,  without  regard  to  tlio 
unlawfulness  of  the  sale,  and  make  no  distinction  between 
a  sale  and  a  gift.  They  provide  that  every  husband,  wife, 
child,  parent,  guardian,  employer,  or  other  person  who 
shall  be  injured  in  person  or  property,  or  means  of  sup- 
port,  by  any  intoxicated  person,  or  in  consequence  of  the 
intoxication,  habitual  or  otherwise,  of  any  person,  shall 
have  a  right  of  action  in  his  or  her  own  name,  severally 
or  jointly,  against  any  person  who  shall,  by  selling  or 
giving  away  intoxicating  liquors,  have  caused  the  intoxi- 
cation, in  whole  or  in  part,  of  such  persons,  for  all  dam- 
ages  sustained  from  the  efifect  of  such  intoxication,  and 
for  exemplary  damages.® 


§  1128.  Liability  Absolute  —  Lawfulness  of  Sale  Im- 
material. —  Under  the  statutes  of  the  states  of  the  Third 
Group,  the  liability  for  the  sale  or  gift  is  absolute;   it 


shall,  by  reason  of  such  intoxication, 
injure  any  person  in  his  or  her  means 
of  support  who  may  have  the  legal 
right  to  look  to  him  therefor,  upon 
due  i)roof  that  such  liquors  were  sold 
or  furnished  as  aforesaid,  and  that  the 
person  mentioned  in  said  notice  was, 
at  the  time  of  service  thereof,  in  the 
habit  of  drinking  to  intoxication,  an 
action  may  be  maintained  by  the  hus- 
band, wife,  child,  parent,  or  guardian 
of  the  person  mentioned  in  said  no- 
tice, or  other  person  injured  by  him  as 
aforesaid,  against  the  person  selling 
or  furnishing  him  such  liquors,  as  well 
as  for  all  such  damages  as  the  plain- 
tiff has  sustained  by  reason  of  the 
selling  or  giving  of  such  liquors,  as  for 
exemplary  damages;  and  if  the  person 
so  proceeded  against  has  given  the 
bond  and  security  hereinafter  provided 
for,  such  suit  may  be  brought  and 
prosecuted  upon  such   bond  against 


him  and  his  sureties  therein.  Such 
suit  may  be  brought  and  prosecuted  by 
a  married  woman  in  any  case  where 
the  person  mentioned  in  such  notice  is 
her  husband  or  infant  child,  and  the 
damages  recovered  therein  shall  be 
her  sole  and  separate  property,  and 
governed  by  the  provisions  of  the  code 
of  West  Virginia,  in  relation  to  the 
separate  property  of  married  women  "; 
Laws  1877,  p.  144,  sec.  16. 
»  Rev.  Stats.  1874,  p.  438. 

*  Code  1873,  sees.  1556  et  seq. 
8  Gen.  Stats.  1868,  p.  399. 

*  fien.  Laws,  1875,  p.  284. 
"  Laws  1873,  c.  646. 
*Laws  1875,  p.  35. 

'  Laws  1874,  p.  303. 

*  Such  a  remedy  did  not  exist  by 
the  rules  of  the  common  law.  8ee 
Lawson  on  Civil  Remedies,  Intoxicat- 
ing Liquors,  1,  3;  Woody  v.  Coeoau,  44 
Jowa,  19. 


1947  INJURIES  FROM  INTOXICATING  LIQUORS.       §  1129 


does  not  depend  upon  its  unlawfulness/  as  in  the  other 
group,  where  the  remedy  is  given  only  when  the  transac- 
tion has  been  in  violation  of  law,  such  as  a  sale  by  an  un- 
licensed person,  or  to  a  minor  or  habitual  drunkard,  or 
after  notice  of  his  habits.  It  is  no  defense  that  the  de- 
fendant was  licensed  to  sell  intoxicating  liquors.'^  But 
the  defendant  may  nevertheless  show  that  he  had  been 
licensed  to  sell  spirituous  liquors,  and  was  legally  selling 
them  under  that  authority  on  the  occasion  complained  of, 
not  as  a  defense,  but  in  nitigation  of  damages.^  It  is  not 
necessary  that  the  party  selling  should  compel  the  pur- 
chaser to  drink,  or  use  any  art,  device,  or  trick  to  cause 
him  to  become  intoxicated,  or  know  that  he  would  become 
so.'    These  statutes  are  to  be  construed  strictly.® 

§  1129.  Who  Liable — Master  and  Servant — Principal 
and  Agent.  —  The  words  "  any  person,"  as  used  in  the 
statutes,  are  very  broad,  and  embrace  all  persons  making 
the  sale,  without  regard  to  their  capacity,  —  whether 
owner,  son,  clerk,  or  servant.*  The  master  is  liable  for 
a  sale  made  by  his  servant,  even  though  in  the  particular 
case,  the  servant  having  a  general  authority  to  sell  liquor, 
he  disobeyed  the 'orders  of  the  master.'  A  clerk  or  sales- 
man who  sells  liquor  is  a  joint  wrong-doer  with  his  prin- 
cipal, and  may  be  joined  in  an  action  with  him.^     But 


'Hayes  v.  Phelan,  4  Hun,  773. 
Contra,  Baker  v.  Beckwith,  29  Ohio  St. 
31o;  Sibila  v.  Bahuey,  34  Ohio  St. 
39'J. 

-  Horning  v.  WendM,  57  Ind.  172; 
Baker  v.  Pope,  2  Hun,  556;  Quain  v. 
Russell,  12  Hun,  376.  Nor  is  it  ne- 
cessary that  an  action  should  also  be 
maiutaimible  against  the  intoxicated 
person:  Quain  v.  Russell,  8  Hun,  319. 

^  Lawson  on  Civil  Remedies  —  In- 
toxicating Liquors,  16. 

♦  Baruaby  v.  Wood,  50  Ind.  405. 

5  Freese  v.  Tripp,  70  111.  496;  Mer- 
del  V.  Anthis,  71  111.  241;  Kellerman 
V.  Arnold,  71  111.  632;  Fentz  v.  Mead- 
ows, 72  111.  540;  Hayes  v.  Phelan,  4 
Hun,  773. 


*  Worley  v.  Spnrgeon,  38  Iowa,  465; 
State  V.  Stucker,  33  Iowa,  .395. 

'  Peterson  v.  Knoblo,  35  Wis.  80; 
Smith  ?>.  Reynolds,  8  Hun,  128;  Kcedy 
V.  Howe,  72  111.  133;  George  v.  Gobey, 
128  Mass.  289;  35  Am.  Rep.  370;  Keh- 
rig  V.  Peters,  41  Mich.  475.  But  this 
principle  cannot  be  applied  to  the  case 
of  a  person  who  goes  without  the  per- 
mission of  any  one  and  drinks  an- 
other's beer;  and  the  fact  that  the 
owner  afterwards  demanded  and  re- 
ceived pay  for  the  property  cannot 
make  such  owner  a  wrong-doer  in  the 
original  trespass  on  his  rights:  Kreiter 
V.  Nichols,  28  Mich.  496. 

^Barnaby  v.  Wood,  50  Ind.  405; 
English  V.  Beard,  51  Ind.  489. 


§  1130 


WllONGS   IN    DOMESTIC   RELATIONS. 


104,S 


tlio  words  "  ciiusing  intoxication  by  soiling  or  givnus," 
etc.,  does  not  give  a  right  of  action  against  a  person  in.t 
engaged  in  the  liquor  traffic  who  treats  another  to  a  glass 
of  li([uor  with  no  purpose  of  gain  or  profit.' 

^1130.     Joint     Liability.  —  A   seller   of    intoxicating 
liquors  by  whi(  h  another  is  injured  in  person,  properly, 
or  means  of  sujjport  is  not  released  from  liability  bocnuso 
a  pai't  of  the  liciuors  causing  the  intoxication  was  sohl  hy 
others.    lie  is  liable  if  he  contributed  to  the  result.-   It  i 
no  defense  that  only  one  of  the  two  or  more  drinks  cau>iiiH; 
the  intoxication  was  sold  by  the  defendant.^   The  daniai^cs 
cannot  bo  lessened,  nor  can  the  liability  be  apportions], 
men'ly  because  the  injury  was  due  in  part  to  the  ae(,s  df 
others  than  defcaidant.'^     But  the  rule  is  different  wlieio 
the  wrongs  arc  successive  and  independent,  though  eom. 
mitted  again.st  the  same  person.^    Thus  if  defendent  m'M 
li(|U{)r,  and  })laintiff's  husband  became  sober  after  gottin;^' 
di'unk,  and  then  got  drunk  again  on  liquor  sold  by  anoilur 
party,  and  (he  injury  then  ensued,  defendant  cannot  Ii> 
held  accountable."      The  defendant  is  only  liable  for  all 
the  damages  ii^  which  he  contributed,  even  though  i(  lio 
difficult    to  separate  from    them    the  damages  to  whiili 
he  did    not   contribute,''     The  sale  by  one  defendant  of 
liquors  to  a  person  becomes  an  independent  and   ((mii- 
pleto   cause  of  action,  and  a  sale  to  him  of  intoxicatiii.; 
liquors  by  another  person  on  the  next  day, the  next  w^ik, 

1  A.leu  V.  Cruso,  21  111.  App.  391.  Mayors  v.  Smith,  25  III.  App.  (17;  ('"X 

^  Wdoliiuatlicr  r.   Risley,  S8  Iowa,  v.  Newkirk,  73  Iowa,  42. 

480;  Fduutain  r.  Draiier,  4!)  Iiiil.  141;  ^  Werner?'.  Edmiston,  24  Kiin.  147; 

Hackutt  r.  Siiielsey,  77  111.  109;  Emery  Rantz  v.  Baines,  40  Ohio  St.  4:i. 

r.  AtUli.s,  G  Cliio.  [j.  N.  3.30;  Bodge  v.  *  Steele  v.  Thompson,  42  Midi.  .V.)4. 

Hughes,    53   N.    H.    010;    Jcwett  v.  ^  La  France   v.   Krayer,    42    Inwa, 

Wanshiira,  43  low.i,  574;  Kearney  r.  143;    Jewett  v.  Wanshura,  43  Liwi, 

Fitzgeriilil,     43    Iowa,    580.    Boyd   v.  574. 

Watt,  27  Ohio  St.  259;  Koosc  v.  Per-  «  Barks  v.  Woodruff,  12  111.  App  %. 

kins,  0  Nell.  304;  31  Am.   Rep.  409;  '  Huggins   v.   Kavanagh,    52   Iowa, 

OLeary  /•.  Frisltey,   17  111.  App.  553;  3G8;    Flint  v.    Gauer,    60  Iowa,  ('I'.Hi; 

Kerkow  r.  Bauer.   15  Neb.  150;  Bry-  Welch  v.  Jugenheimor,  50  lowi,   11; 

ant  ?•.  Tidgewell,  133  Mass.  80;  Buck-  41  Am.  Rep.  77;  Appelgato  v.  Wmc- 

worth  V.  Crawfo  .d,  24  111.  App.  COS;  brenaer,  67  Iowa,  235. 


1019 


INJimiES    FROM    INTOXJXLiTING    LIQUOIIS. 


1131 


ant 

nt 

colli- 

cal 

'"'-; 

w. 

v\i, 

liT; 

Crx 

iT 

147; 

irll. 

.V.)4, 

■->     1 

iwa, 

S    I 

t\\\. 

Ap, 

,  ',1:'.. 

2    i 

v\r\, 

vv;i. 

li'Jii; 

i\\;i 

,  11; 

■:  Wiue- 

or  the  next  month,  would  not  give  a  joint  rifjfht  of  notion 
for  cither  tho  first  or  Inst  sale.  Each  is  couipleto  in  it- 
s(ir.'  So  where  the  injury  resulting  from  the  sale  of  in- 
toxicating liquors  proceeds,  not  from  a  particular  act  of 
intoxication,  but  rather  from  a  general  bosotttcd  con- 
dition, those  who  may  have  contributed  to  such  condition 
liv  tho  sale  of  the  liquors  arc  not  jointly  liable  with  those 
who  may  have  contributed  to  the  immediate  act,''  8o  if 
A  sells  to  B,  and  15  to  C,  and  C,  being  thereby  intoxi- 
oatod,  injures  D,  D  can  recover  from  B,  but  not  from  A.' 

^  1131.    Liability  of  Owner  or  Lessor  of  Premises.  — 

Under  the  statutes  of  Illinois,  Michigan,  New  York,  and 
Ohio,  any  person  owning,  renting,  leasing,  or  pcrmil.ting 
tho  occupation  of  any  building  or  premises,  and  having 
knowledge  that  intoxicating  liquors  are  to  bo  sold  therein, 
or  who  having  leased  a  building  for  other  jjuiposes  shall 
pGiniit  the  sale  of  intoxicating  liquors  therein,  which 
niiiy  have  caused,  in  whole  or  in  part,  the  intoxication  of 
any  person,  is  made  liable,  severally  or  jointly,  with  the 
person  or  persons  selling  or  giving  the  intoxicating  liquors 
fur  all  damages  that  may  be  sustained  from  such  sale  or 
gift,  and  likewise  for  exemplary  damages.*  By  the  Illi- 
nois, Iowa,  and  Ohio  statutes,  the  premises  in  which  the 
sale  is  made  are  liable,  and  a  judgment  obtained  under 
the  acts  becomes  a  lien  upon  the  property,  whether  owned 
by  tho  person  who  sold  or  gave  away  the  liquor,  or  by  one 
who  has  rented  it  to  be  used  for  the  sale  of  intoxicating 
hquors,  or,  though  leased  or  rented  for  another  purpose, 
permits  it  to  be  used  in  such  manner;*  and  proceedings 
may  be  had  to  subject  the  premises  to  tho  payment  of  a 

'La  France  v,    Krayer,    42   Iowa,  Mich.  Laws  of  1871,  vol.  1,  c.  09,  sec. 

m  2;    N.  Y.  Laws  of  187.3,  c.  C46,  see.  1; 

■Hitclmer  ?'.  Ehlers,  44  Iowa,  40;  Saylor'8OhioSfcats.2;j()0,  sef.7;Soliroe- 

Tetziicf  V.   Naughton,    12    111.    App.  dor  r.  Crawford,  94  111.  357;  34  Am. 

14S;  Kiehmond  v.  Sliickler,   57  Iowa,  Rep.  236. 
4S(;.  '•>  Rev.  Stats.  III.,  c.  43,  sec.  10;  Code 

^Busli  V.  Murray,  66  Me.  472.  of  Iowa,  sec.  1558;  Say lor's  Ohio  Stata., 

'  Iluv.   Stats.   111.,   c.   43,   sec.    9;  2364,  c.  1871. 


g  1181 


"WTIONOS   IN   DOMESTIC   RELATIONS. 


lO.'O 


judgment,  either  before  or  after  oxceution  is  issued  aj^ainst 
the  property  of  the  person  against  whom  the  judgmont 
may  have  been  recovered.  And  if  the  building  or  prom- 
ises belong  to  a  minor,  or  other  person  under  disability, 
the  guardian  or  conservator  of  such  person,  and  his  real 
and  personal  property,  aro  liable  in  the  place  and  stead  of 
the  property  of  his  ward.  In  Illinois,  Ohio,  New  York, 
and  Michigan,  tho  sale  or  gift  of  intoxicating  liquors 
contrary  to  tho  provisions  of  tho  act  works  a  forfeiture 
of  all  rights  of  the  lessee  or  tenant  under  any  lease  or 
contract  of  rent  upon  the  premises  where  such  unlawful 
sale  or  gift  takes  place.'  Tho  court  of  chancery  under  tho 
last  statute  is  authorized  to  enjoin  the  sale  or  gift  of  in- 
toxicating  liquors,  by  any  lessee  of  premises,  which  may 
result  in  liability  on  the  part  of  the  lessor.  While  the 
plaintiff  may  bring  an  action  against  tho  seller  of  liquors 
causing  intoxication  and  damage  alone,  and,  having  re- 
covered judgment  by  another  action  against  the  owner, 
enforce  it,  yet  he  has  the  right  to  join  them  in  one  action, 
and  therein  obtain  complete  relief.'^  And  the  judgment 
so  recovered  may  bo  reversed  as  to  one  and  affirmed  as  to 
the  other."  Exemplary  damages  may  be  recovered  against 
the  lessor  on  proof  authorizing  their  recovery  against  the 
lessee."*  This  part  of  the  law,  however,  does  not  apply  to 
the  owner  of  premises  who  himself  sells  liquor  therein. 
Therefore  where  the  owner  sells  in  violation  of  the  act,  he 
is  liable  because  of  his  sales,  and  not  on  account  of  his 
ownership  of  the  premises  in  which  the  sales  are  mtidu.' 
But  a  wife  owning  a  building,  and  knowingly  permitting 
her  husband  to  carry  on  the  business  of  selling  intoxicat- 
ing liquor  therein,  is  liable,  although  her  title  and  the 
joint  possession  were  acquired  before  the  passage  of  the 


»  Rev.  stats.  111.,  c.  43,  sec.  10;  N. 
Y.  Laws  of  187.S,  c.  646,  sec.  1;  Saylor's 
Ohio  Stats.  2360,  sec.  7;  Mich.  Laws 
of  1871,  c.  69,  sec.  2. 

*  La  France  v.   Krayer,    42  Iowa, 


143; 

89. 


Loan    V.    Hurney,    53    Iowa, 


»  Reugler  v.  Lilly,  26  Ohio  St.  48. 
'  Reid  V.  Terwilliger,  42  Hun,  310. 
*  Barnaby  v.  Wood,  50  Ind.  405. 


1951  INJURIES   FROM   INTOXICATING   LIQUORS.       8  1131 


act.'  Tho  statutes  will  not  be  construed  to  make  liable 
tliose  baviug  only  reversionary  and  contingent  interests, 
and  wbo  do  not  control  tho  letting.'  What  will  amount 
to  knowingly  permitting  or  suiTeriiig  liquor  to  bo  sold  on 
the  premises  on  the  part  of  one  who  has  leased  them  for 
legal  purposes  is  a  question  of  some  doubt/'  Sojno  act  on 
hid  part  signifying  his  assent  to  tho  use  seems  to  bo  essen- 
tial.^ But  tho  consent  of  the  owner  need  not  Ix)  shown  by 
any  positive  affirmative  act.*  General  reputation  of  tho 
place  being  used  for  tho  purpose  of  selling  spirituous 
liquors  is  admissible  on  tho  question  of  the  defendant's 
kuowledge."  Where  it  was  proved  that  tho  defendant  by 
a  written  lease  lot  a  building  to  one  F.  for  the  sale  of 
liquor,  on  an  understanding  that  F.  was  to  occupy  it  for 
that  purpose,  and  F.  did  occupy  it  for  tluit  purpose,  it  was 
hold  that  such  facts  would  sustain  an  allegation  of  "  suf- 
fering "  the  premises  to  be  occupied  for  tho  purposes 
named,  as  well  as  an  allegation  of  "  letting "  for  a  like 
purpose.^ 

Where  a  landlord  seeks  to  avoid  a  lease  for  a  violation 
of  the  statute,  tho  defendant  cannot  prevent  such  avoid- 
ance by  showing  a  payment  of  rent  for  the  entire  term.'' 
If  the  sale  be  made  on  any  part  of  the  leased  property,  it 
works  a  forfeiture  of  the  whole."    The  owner  may  dispos- 


»  Mead  v.  Stratton,  87  N.  Y.  493;  41 
Am.  Rep.  38G, 

''  Castle  V.  Fogerty,  19  111.  App. 
442, 

'  See  Granger  v.  Knepfer,  1  Cin. 
Rep.  480. 

« State  V.  Ballingall,  42  Iowa,  87; 
State  r.  Abrahams,  6  Iowa,  117;  71 
Am.  Dec.  399;  Zurk  v.  Grant,  25  Ohio 
St.  352;  Mead  v.  Stratton,  8  Hun, 
148;  Meyers  v.  Kirt,  57  Iowa,  421; 
Cobleigh  V.  McBride,  45  Iowa,  116. 

^  Loan  V.  Etzel,  62  Iowa,  429. 

« State  V.  Shanahan,  54  N.  H.  437. 

'  State  V.  Shanahan,  54  N.  H.  437. 

«McGarvey  w.  Puckett,  27  Ohio  St. 
669.  Where  a  tenant  uses  leased 
premises   for   the   unlawful    sale  of 


liquor,  whereby,  under  the  act  of  April 
18,  1870  (67  Ohio  Laws,  101),  he  for- 
feits his  lease,  tho  landlord  may  main- 
tain an  action  of  forcible  detention 
before  a  justice  to  recover  the  prem- 
ises. He  is  not  required  to  sue  in 
equity.  So  held  where  tho  landlord 
was  not   chargeable  with  leasing  the 

J  remises  for  the  unlawful  business: 
ustice  V.  Lowe,  26  Ohio  St.  372. 
Where  an  owner  is  sued  for  an  injury 
under  the  statute,  a  justice  of  the 
peace  has  no  jurisdiction,  as  it  ia  an 
action  in  which  the  title  to  real  estate 
is  involved:  Bowers  v.  Pomeroy,  21 
Ohio  St.  184. 

^McGarveyu.  Puckett,  27  Ohio  St. 
672. 


mmm 


§1132 


WRONGS   IN   DOMESTIC  RELATIONS. 


1952 


sess  his  lessee  from  the  whole,  notwithstanding  the 
wrong  doer  is  net  complainant's  immediate  lessee,  but 
is  a  subtenant,  and  of  a  i^art  onl^  of  the  building.^ 

The  provisions  of  the  statute  declaring  that  real  estate 
not  owned  by  the  seller,  but  whereon  the  sale  is  made, 
shall  be  held  liable  for  the  payment  of  a  judgment  against 
him  do  not  create  a  lien  upon  the  property,  but  simply 
authorize  it  to  be  subjected  to  the  payment  of  the  judg- 
ment in  a  suit  against  the  o^nler  instituted  for  that  pur- 
pose.  Until  the  commencement  of  a  suit  against  him, 
the  judgment  creditor  acquires  no  interest  in  the  prop- 
erty; and  if  before  the  suit  is  brought  it  has  been  sold 
and  conveyed,  it  cannot  be  subjected  to  the  payment  of 
such  a  judgment.*  In  an  action  to  enforce  the  lien,  the 
former  judgment  is  evidence  that  the  judgment  was  ren- 
dered, but  not  of  the  amount  for  which  the  property  is  to 
be  subjected,  as  against  the  owner,  who  was  not  a  party  to 
the  original  proceedings.^  V/here  in  a  joint  action 
against  several  defendants  different  judgments  are  ren- 
dered upon  separate  trials  against  the  sevend  defendants, 
the  plaintiff  must  elect  upon  which  of  tha  judgments  he 
Avill  rely,  as  a  lien  upon  the  premises  where  the  sale  took 
place,  as  the  satisfaction  of  one  judgment  discharges  the 
rest.'* 


§  1132.  Who  may  Sue  — In  General.  —  Tie  action 
under  these  statutes  is  not  given  on  the  ground  of  more 
relationship:  it  extends  to  all  who  have  been  injured  in 
person,  propertj--,  or  means  of  support.®  The  right  of 
action  is  not  restricted  to  a  single  person  for  a  single 
injury,  but  extends  to  a  husband,  wife,  children,  or  other 


1  People  r.  Bennett,  14  Tlun.  03. 

■'  BuUiiiger   r.    Griffith,  2 '  Ohio  St. 

Gia. 

■*  Buckliiim  '■.  Grape,  65  Iowa,  .535. 
♦  rutiicy  /•.  O'Brien,  53  Iowa,  117. 
"  Gans.-,ly  r.  Perkins,  .30  Micli.  4i)5. 
The  action  lies  by  a  wife  only  where, 


by  the  selling  of  liqnors  to  a  (Irankoi! 
husl)an(l,  slie  has  been  itijui'i'd  i:i  pur- 
son  or  property  or  mean:*  of  f^npjiort; 
and  where  no  injury  in  eitlior  of  (Ik -o 
respects  is  proved,  no  riv-owry  ,:i:> 
bo  had:  Fentz  v.  Meadows,  7-  111. 
540. 


1953 


INJURIES   PROM  INTOXICATING   LIQUORS. 


1132 


persons  who  are  injured,  be  they  ever  so  many/     The 
siction  given  to  the  "  parent "  of  a  minor  to  whom  liquor 
bus  been  sold  may  be  maintained  by  his  mother  without 
proof  that  he  has  no  father;'^  and  a  man  of  twenty-four 
who  is  not  dependent  on  his  father  is  a  "  child  "  within 
the  same  statute.^     The  husband  may  sue  for  injury  to 
liji  means  of  support  by  the  intoxication   of  his  wife.'* 
Uader   a   statute  declaring   that   licensed   liquor-sellers 
'•shall  pay  all  damages  that  the  community  or  individuals 
may  sustain  in  consequence  of  such  traffic,"  one  who  vol- 
uutaiily  goes  to  a  licensed  liquor-saloon,  and  buys  and 
drinks  liquor,  and  from  its  effects  becomes  stupefied  and 
unconscious,  and  frozen  while  so  stupefied,  has  a  right  of 
action  against  the  seller.^     But  under  a  statute  giving  to 
"every  wife,  child,  parent,  guardian,  husband,  or  other 
person  "  a  right  of  action  for  injury  by  reason  of  the  in- 
toxication of  any  person  against  the  seller  of  the  liquors, 
the  intoxicated   person  himself  has  no  right  of  action 
against  the  seller  for  money  stolen  from  him  when  drunk." 
The  wife  may  sue  after  the  deaf^t  of  the  husband,  and  his 
death  does  not  abate  a  suit  a     ^ady  commenced.^     She 
need  not  be  a  wife-at  the  time  of  bringing  the  suit,  if  she 
was  at  the  time  of  the  wrongful  act.^   Under  an  act  giving 
an  iiction  to  one  "dependent"  on  the  deceased,  a  plain- 
till'  claiming  to  be  his  widow  must  show  a  lawful   carriage, 
and  one  claiming  to  be  his  child  must  show  his  legiti- 
macy."   Where  by  statute  a  father  is  required  to  support 
his  adult  pauper  son,  he  may  sue  for  injuries  to  him  un- 
der the  statute."* 


'  Frauklin  v.  Schermerhorn,  8  Hun, 
ll'J. 

■'  McXoih).  Collinson,  130  Mass.  167. 

'  Taylor  w,  Carroll,  145  Mass.  95. 

*  Moiaii  2».   Goodwin,     130    Maaa. 
158;  ;)'J  Am.  Rep.  443. 

"  liuckiiiaster  v.  McElroy,  20  Neb. 
557;  57  Ain.  Rep.  843. 

"  Bi'ooka  V.  Cook,  44  Mich.  617;  38 
Am,  Kep.  282, 
123 


'  Hackett  v.  Smelsley,  77  III.  109; 
Roose  V.  Perkins,  9  Neb.  304;  31  Am. 
Rep.  409. 

"  Schneider  v.  Hosier,  21  Ohio  St. 
116;  Jackson  v.  Brookins,  5  Kun, 
530. 

» Good  V.  Towns,  56  Vt.  410;  48 
Am.  Rep.  799. 

'"  Clinton  v.  Laning,  01  Mich.  355. 


§11 


rtr, 
0<J 


WRONGS   IN   DOMESTIC   RELATIONS. 


1954 


In  florae  of  the  states  a  stated  compensation  is  permitted 
to  bo  recovered  against  the  seller  by  one  taking  care  of  the 
intoxicated  i>erson  while  so  intoxicated/  It  is  held  that  a 
wife  may  recover  under  this  section  the  stated  compensa- 
tion in  addition  to  injury  to  person,  property,  or  mcau.s 
of  support."  But  this  section  of  the  statute  giving  a  stated 
eum  per  day  for  taking  charge  of  and  providing  for  the 
intoxicated  person  has  no  application  to  the  case  of  in- 
toxication caused  by  liquors  given  to  him.^  The  sum  can 
only  ]»e  recovered  in  an  action  of  debt  as  prescribed  in 
the  statute,'*  and  the  sum  named  in  the  statute  is  the  limit 
of  the  recovery.^  Plaintiff  is  entitled  to  recover  for  tak- 
ing ciire  of  the  intoxicated  person  only  for  the  time  he 
remains  intoxicated.^  A  physician  who  treats  profes- 
sionally a  person  who  is  injured  while  intoxicated  does 
not  "  take  charge  of  and  provide  for"  such  person  within 
the  moaning  of  the  statute.'^  In  actions  under  these  stat- 
utes, the  intoxicated  person  is  not  a  necessary  party  de- 
fendant.'* When  the  wife  sues  for  injuries  to  her  person 
or  me;ais  of  support  she  need  not  join  her  husband  as 
plaint iilV  Where  the  statute,  while  giving  a  right  of 
action  to  those  injured  in  their  means  of  support,  etc., 
makes  no  mention  of  a  joint  right  of  action,  infant  chil- 
dren injured  by  sales  to  their  father  cannot  join,  but  must 
bring  separate  actions,'"  The  cause  of  action  under  the 
Maine  statute  is  not  assignable." 


§  1133.  Injuries  to  the  Person. — The  fact  that  defend- 
ant has  continually  sold  liquor  to  plaintiff's  husband 
again.st  her  request  does  not  give  her  a  right  of  action;'- 


'  Kansas,  1  Das3.  Stats.,  c.  35,  sec. 
9;  Illinois,  Rev.  Stats.,  c.  43,  sec.  8; 
Iowa,  ('(mIo  1873,  sec.  1556;  Oliio,  2  8. 
&  V.  U:!l,  sec.  6;  Brannan  i).  Adams, 
7li  111.  .H:;5. 

^  Wiglitman  v.  Devere,  33  Wis. 
570. 

»  Branruin  v.  Adams,  76  111.  331. 

*  Coufrey  v.  Stark,  73  111.  187. 


^  Brannan  v.  Adams,  7G  111.  .S31. 
'"'  Krach  v.  lleilman,  53  Ind.  517. 


V.  Grceuough,   5J 


Iowa, 


"  Sausom 
127. 

"  English  V.  Beard,  51  Ind.  48!!. 
»  Mitchell  V.  llatts,  57  lud.  259, 
'"  Durein  v.  Pontious,  .34  Kan.  Ito3, 
"  McGee  v.  McCann,  6!)  Mo.  7i). 
»2  McEatee  v.  Spichler,  12  Daly,  435, 


1955 


INJURIES    FROM    INTOXICATING   LIQUORS. 


1133 


,  •'■ 


:wi. 
,(1.  r>i7. 

55  Iowa. 

481!. 

Ivan.  r)53. 
U.  70. 
Daly,  435, 


nor  does  his  mere  intoxication;^  nor  does  the  death  of  the 
hushand  alone.^  There  must  be  such  an  injury  as  the 
statute  describes,  which  is,  in  most  of  the  statutes,  an  in- 
jury to  the  person,  property,  or  means  of  support  of  the 
phiintiff.  To  sustain  the  action  for  injuries  to  the  per- 
son, an  assault,  or  some  actual  violence  or  physical  injury 
to  the  person  or  health,  must  be  shown.^  Anguish,  men- 
tal distress,  or  pain  of  mind,  or  the  feelings  suffered  by 
a  wife  by  reason  of  her  husband's  intoxication,  or  the  loss 
jf  social  standing,  are  not  elements  of  damages.^    And 


'  Confrey  v.  Stark,  73  111.  187. 

''  Brookmire  v.  Mouaghan,  15  Hun, 
16. 

^  Mulf-'-d  V.  Clewell,  21  Ohio  St. 
lO:^;  V  or  V.  Booth,  57  Mich.  249; 
Callowuj  i^aydon,  47  Iowa,  456;  29 
Am.  Rep.  489,  the  court  saying:  "We 
\\ivo  then  the  question  whether  tlireats 
:  •  '>  "ulgarity  dii'ected  by  the  husband 
u.  ;i lu  wife,  unaccompanied  by  physi- 
V-'  '.jury,  Wi'l  entitle  her  to  recover 
actual  damage,  and  if  not,  whether 
tlu'y  will  entitle  her  to  recover  ext.a- 
pUiiy  damages.  In  Mulford  v.  Clew- 
ell, '21  Ohio  St.  19G,  which  arose  under 
a  statute  similar  to  ours,  the  court  be- 
low, in  instructing  the  jury  upon  the 
subject  of  injury  to  the  plaintiff's  per- 
son, said:  'Mortificatiea  and  sorrow, 
ami  loss  of  her  hu-sband's  society,  are 
not  enough.  They  are  misfortunes  for 
wIulIi  she  has  no  remedy  under  this 
1  iw.  If  she  had  been  attacked  by  her 
tlnuiken  husband,  and  injured  ia  her 
person  by  his  violence,  she  could  re- 
cover.' On  appeal  this  instruction  was 
approved.  A  similar  statute  in  Illi- 
nois is  construed  in  the  same  way: 
Fncse  V.  Tripp,  70  111.  503.  In  the 
case  at  bar,  the  court  attempted  to 
di.scriniinate  between  the  mental  .suf- 
fcrin;^  experienced  by  the  wife  from 
language  and  conduct  of  the  husband 
not  directed  towards  her  and  the  suf- 
fering from  language  and  conduct 
whii.h  were  directed  towards  her. 
liie  words  '  in  person  '  are  not  under- 
stiioil  by  the  court  below  to  mean  in 
boily.  An  injury  in  person  is  under- 
stood to  be  synonymous  with  personal 
mjury.    Vulgar  conduct  of   the  hus- 


band in  general,  however  mortifpng 
and  painful  to  her  feelings,  is  thought 
by  the  court  not  to  be  a  personal  in- 
jury, but  becomes  so  when  it  ia  di- 
rected to  a  person.  "We  are  of  the 
opinion  that  the  court  misconceived 
the  meaning  of  the  words  'in  person.' 
We  think  tha  they  mean  in  bcidy. 
That  was  evid  nitly  the  view  of  the 
court  in  Mulford  i". Clewell, above  cited. 
The  statute  gives  a  right  of  action  to 
any  one  who  shall  be  injured  in  per- 
son. To  hold  that  it  was  designed  to 
give  a  right  of  action  to  every  one  to 
whom  a  threatening  or  vulgar  remark 
should  be  addressed  by  an  intoxicated 
person  would,  in  our  o])inion,  be  put- 
ting a  construction  upon  tiie  statute 
of  which  it  is  not  properly  susceptible. 
If  wo  arc  correct,  then,  threatening 
language  or  vulgar  conduct,  although 
directed  to  the  plaintiff,  but  not  result- 
ing in  the  impairment  of  her  health, 
does  not  constitute  a  ground  for  the 
recovery  of  actual  damages,  and  the 
court  erred  in  instructing  the  jury- 
that  they  migh*;  be  considered  in  that 
connection." 

*  Froese  v.  Tripp,  70  111.  490;  Meidel 
V.  Anthis,  71  111.  241;  Fentz  r.  Mead- 
ows, 72  111.  540;  Confrey  v.  Stark,  73 
111.  187;  Koerner  v.  Oberly,  50  Ind. 
2S4;  20  Am.  Rep.  34;  Jackson  v.  No- 
ble, 54  Iowa,  041.  But  alilcr  under  a 
statute  giving  exemplary  damages  to 
the  wife  "  who  shall  be  injured  in  per- 
son, property,  means  of  support,  or 
otherwise,  ....  by  reason  of  the  in- 
toxication of  any  person":  Friend  v. 
Dunks,  37  Mich.  25. 


^1134 


WRONGS   IN   DOMESTIC   RELATIONS. 


195G 


mere  abuse  is  not  enough.^  So  the  fact  that  a  husband, 
wlieii  intoxicated,  called  liis  wife  a  prostitute  in  the  pres- 
ence of  her  neighbors,  and  threatened  to  kill  her,  in  the 
absence  of  j^roof  that  his  conduct  impaired  her  health, 
does  not  constitute  a  ground  for  the  recovery  of  damages 
in  her  action  against  the  liquor-seller.^  Where  the  hus- 
band, while  intoxicated,  without  actual  violence,  but  by 
threats  and  abusive  language  and  intimidation,  drove  his 
wife  out  of  his  house,  and  kept  her  out  for  several  hours, 
it  was  held  that  this  constituted  a  physical  injury  and 
suffering  sufficient  to  sustain  an  action.' 

§  1134.  Injuriefc  *o  Property.  —  Under  this  phrase  in  the 
statutes,  suit  may  be  brought  for  the  squandering  by  the 
drunkard  of  the  money  or  chattels  of  the  wife  or  other  })er- 
son;^  for  property  destroyed  by  a  person  while  drunk;  ^  as 
while  drunk  ibr  driving  a  horse  so  violently  that  it  died.^ 
A  party  may  sue  for  money  paid  during  a  period  of  time  for 
liquor  sold  to  him  in  violation  of  these  statutes.  And  the 
same  right  exists  in  favor  of  his  personal  representatives, 
it  being  an  injury  to  the  estate  of  the  intestate  of  a  pro- 
prietary  character,  as  distinguished  from  a  mere  personal 
injury.'  No  demand  of  the  chattels,  or  notice  of  claim, 
is  necessary  before  the  suit  can  be  brought.'*  If,  as  betwoou 
the  wife  suing  as  the  plaintiff  and  the  husband,  the  prop, 
erty  was  hers,  whether  it  would  have  been  hers  as  to 
creditors  or  a  purchaser  from  her  husband  in  posses.-iion 
is  not  material;  for  the  defendant  in  such  a  proceeding 
does  not  occupy  either  of  these  relations."   An  action  mtiy 


1  Albrecht  v.  Walker,  73  111.  G9; 
Welcli  V.  Jugeuheiiner,  50  Iowa,  11; 
41  Am.  Hop.  77. 

-  Calloway  v.  Laydon,  47  Iowa,  456; 
29  Am.  Rep.  489. 

••  Peterson  v.  Knoble,  35  Wis.  80; 
Wiu'litiuaii  V.  Devere,  .'}3  Wis.  570; 
"Wanl  i\  Tijompson,  48  Iowa,  588. 

'  Mulfonl  V.  Clewell,  21  Ohio  St. 
197;  Hemiuens Z7.  Beiitley,  32  Mich.  89. 


^  Woolheather  v.  Risley,  38  Iowa, 
187. 

"Bertholf  v.  O'Reilly,  8  Hun,  Hi; 
Diinlap  V.  Wagner,  85  Ind.  529;  44 
Am.  Rep.  42. 

■  Kilhurn  v.  Coe,  48  How.  Pr.  1)1. 

*>  Mulford  V.  (newell,  21  Ohio  >lx,. 
197. 

*  Woolheather  v.  Eisley,  38  Iowa, 
187. 


1957 


INJXmiES   FROM   INTOXICATING  LIQUORS.       §  1135 


be  maintained  by  a  person  prevented  from  following  his 
usual  occupation  by  being  struck,  beaten,  or  wounded  by 
an  intoxicated  person.*  So  where  defendant  sold  liquor 
to  plaintiflP's  son-in-law,  who,  becoming  intoxicated,  drove 
a  team,  behind  which  plaintiff's  wife  was  riding,  so  reck- 
lessly as  to  upset  the  wagon  and  break  the  wife's  arm,  the 
plaintiff  was  held  entitled  to  recover  for  the  loss  of  her 
services  and  the  expenses  of  medical  attendance,  etc.^ 

§  1135.  Injuries  to  "Means  of  Support." — The  phrase 
"  means  of  support,"  as  used  in  the  statutes  in  reference 
to  the  damages  suffered  by  the  wife,  relates  to  whatever 
tlie  husband  might  have  earned  or  made  by  his  labor  and 
attention  to  business  and  contributed  to  the  family  sup- 
port.' Thus  mere  intoxication  affecting  in  any  way  his 
capacity  to  labor  will  give  the  wife  a  right  of  action.'*  So 
where  sickness  or  insanity  results  from  the  intoxication.* 
If  the  death  of  the  husband  is  shown  to  have  resulted 
from  intoxication  produced  by  liquors  sold  or  given  to 
him  by  the  defendant,  in  the  absence  of  contrary  proof, 
the  jury  may  infer  an  injury  to  her  rr.eans  of  support. 
This  would  shift  the  burden  of  proof,  and  entitle  her  to 
at  least  nominab  damages."  It  is  actionable  to  destroy  a 
mail's  health  and  ability  to  labor,  —  his  power  to  accumu- 
late future  means  of  support,'  —  since  where  he  has  been 
able  to  work,  and  his  wife  depends  on  him,  his  disability 
is  an  injury  to  her  means  of  support,  and  the  more  so  if 
he  becomes  a  burden  on  her  by  putting  her  to  expense 
for  cure  and  medical  attendance  on  his  account.^  A 
wife  whose  husband,  a  cripple,  was  knocked   down  and 


'  Eucrlish  V.  Beard,  51  Ind.  489. 

''  Alilrich  t\  Sager,  9  Hmi,  537. 

•'  \\iglitinan  v.  Dcvere,  33  Wis.  570; 
Hutciiinsou  V.  Hubbard,  21  Neb.  33. 
Suo  Di'cker  v.  Stauiug,  57  How.  Pr. 
4iiri.  Tliis  is  a  new  right  of  action.  It 
u  iKit  iioeessary  to  sustain  it  that  tho 
iiijiuy  alleged  should  be  a  connnon- 
U\v  injury,  or  one  before  remediable 


by  action:  Volana  v.  Owen,    74  N.  Y. 
526;  30  Am.  Rep.  337. 

*  Schneider  v.   Hosier,    21  Ohio  St. 
99. 

^Mulford  V.    Clewell,  21  Ohio  St. 
191. 
«  Flynn  r.  Fogarty,  106  111.  2f.3. 
T  Mulford?'.  Clewell,  21  Ohio  St.  191. 

*  Wightmau  v.  Devere,  33  Wis.  570. 


§1135 


WRONGS   IN   DOMESTIC 


1958 


robbed  -while  drunk  was  held  entitled  to  sue.*  It  is  an 
injury  to  a  woman's  means  of  support  that  her  husband 
sj'ent  for  drink  money  that  she  had  trusted  him  with  to 
buy  a  horse  for  her  to  use  in  business;^  and  that  a  son, 
while  drunk,  overdrove  and  so  killed  a  horse  belonging 
to  his  mother.''  Indeed,  the  simple  spending  of  one's 
money  on  liquor  is  a  sufficient  injury  to  the  wife's  means 
of  support  to  sustain  an  a'^'^'on  by  her.^ 

It  is  not  essential  that  ti.e  wife  shall  have  been  without 
supi)ort  in  whole  or  in  part.  Means  of  support  relate  to 
the  future  as  well  as  to  the  present.  It  is  sufficient  if 
tlie  sources  of  her  future  maintenance  have  been  stopped 
or  diminished  below  what  is  reasonable  for  one  in  her 
station  of  life.^  But  nevertheless,  as  said  in  an  Illinois 
case,  the  law  was  not  intended  as  a  means  of  speculation, 
but  as  a  protection  against  injury  to  the  wife  and  children 
of  the  drunkard,  to  preserve  the  property  used  by  the 
family  from  destruction  or  injury,  and  to  protect  the 
family  against  immediate  or  probable  want  of  adequate 
support;  not  to  enable  the  affluent,  or  those  well  provided 
for,  to  sue  and  recover  simply  because  the  husband  and 
father  may  become  intoxicated,  and,  whilst  in  thatcondi 
tion,  loses  time,  neglects  his  business,  or  becomes  injured, 
or  earns  less  money,  or  even  loses  it,  by  neglect  of  busi- 


'  Fraakliii  v.  Sehermerhorn,  8  Hun, 
112. 

■'  McEvoy  V.  Hmni)hrey,  77  III.  :«8. 

^  Berthoif  v.  O'Ruilly,  8  Hun,  Hi. 

*  Qiuiiti  r.  Russell,  8  Hun,  'M'J. 

^Miilfor.l  V.  Clowell,  21  Ohio  St. 
191;  WodUieathcr  r.  Risley,  H8  Iowa, 
1S!I;  Hiiukett  v.  Smulssey,  77  111.  109, 
tlie  court  saying:  "F->ni  tlio  carliu.st 
period  of  the  law,  tiier^  iiasbeeiia  k'l^al 
oUligatiou  ou  the  hu.'.Dauil  to  support 
Li^  wiie.  No  act  of  tliu  legislature  of 
this  state,  when  thi-*  alleged  cause  of 
actioaaccrueil,  liaile  eralirogated.sucli 
law.  It  has  iicor  been  aiuiulleil  by 
judiciai  coastr  ctiou,  nor  do  we  i-u-cog- 
uizu  in  courts  tsne  right  so  to  aunmd  ii. 
...  ..  .   .  The  right  of  support  is  not  liui- 


ited  to  the  supplying  of  the  bare  neces- 
saries of  life,  but  euibrfices  coiufurts, 
what  is  suitable  to  the  wife's  situation 
and  the  husband's  condition  in  life, 
Because  the  wife  iKiy  l)e  able-liodiud, 
and  can  earn  a  livtiihood,  it  does  not 
follow  tliat  she  does  not  suifer  injury 
in  means  of  support  by  loss  uf  hur 
legal  sui)porter.  Nor  does  it  so  follow 
where  she  may  have  inde[K'iiiU;iit 
means  of  support  of  her  own.  'i'liure 
are  always  independent  means  of  sup- 
port. No  one  i>  absolutely  depeuili'ut 
ou  another  for  means  of  suppo.t;  for 
where  there  is  the  absence  of  otlier 
means  of  support,  it  is  provided  l^y 
jiublic  autaority."  But  see  contra, 
Hayes  v.  Pkelau,  4  Huu,  738. 


1959 


INJURIES   PROM   INTOXICiVTtNO   LIQUORS.       §  1135 


ncss,  and  hence  is  not  possessed  of  as  large  means  as  ho 
olhenviso  would  liavo  boon.*  A  widow  dependent  on  her 
sou  for  her  support  may  maintain  an  action  against  a 
liquor-seller  who,  by  his  sales  to  her  son,  has  deprived  her 
of  her  means  of  support.''  In  order  that  a  father  may 
recover  for  damages  sustained  from  a  sale  of  liquors  to 
hiri  son,  ho  must  show  his  poverty  and  dependence  on  the 
sou.''  There  can  be  no  recovery  without  proof  that  the 
services  of  the  son  were  necessary  to  the  father's  support, 
or  that  the  expenses  of  his  illness  had  so  diminished  his 
means  as  to  render  them  inadequate  for  his  su])port.'* 
A  statute  which  makes  a  person  uv, lawfully  furnishing 
spirituous  liquors  responsible  for  injuries  resulting  there- 
from, and  gives  a  remedy  to  any  person  on  whom  such 
injured  person  may  be  dependent  for  means  of  su])port, 
does  not  give  one  upon  whom  a  person  becomes  depend- 
ent in  consequence  of  intoxication  produced  by  liquor  so 
furnished,  and  who  was  not  previously  dependent  upon 
him,  any  right  of  action.^  An  action  will  lie  at  the  suit 
of  a  wife  or  cluld  against  the  seller  of  liquors  to  one  who 
while  so  intoxicated,  and  in  consequence  of  such  intoxi- 
cation, receives  iiijuries  resulting  in  death.^ 

In  New  York,  it  was  held  in  a  case  where  several  per- 
sons became  intoxicated  and  engaged  in  an  affray  in  which 
one  of  them  was  killed,  that  his  widow  could  maintain  an 
action  againsttlie  persons  who  sold  the  liquor  which  caused 
intoxication,  to  recover  the  damages  sustained  l)y  her 
from   the  death  of  her  husband.'     If  the  mari-iar;)  vvas 


'Coufrey?.'.  Sbark,  73111.  187. 

2  McC'lay  i\  Worrall,  18  Nel).  44. 

^Stevens  i\  Cheney,  .30  llim,  1. 

*  V.iliiiis  V.  OwLMi,  74  N.  Y.  5-20;  .30 
Am.  Hup.  3;J7;  Bcrtholt  r.  O'Roilly, 
74  N.  V.  not);  ;W  Am.  Rep.  3-23. 

MlciUiH/'.  Davis,  TjG  N.  if.  74. 

" Liwson  on  Civil  Remedies,  36; 
Mftiiil  -•.  Striitton,  87  N.  Y.  4'J3;  41  Am. 
Ri'p.  .'iSCi;  Rdoso  r.  Perkins,  DNel).  304; 
'M  Am.  lup.  400;  Schroedor  r.  (.'ruw- 
foiM  '.14  111.  3.-)7;  34  Am.  R'-p.  230; 
Kaliorty  v.   Buckmau,  40  Iowa,  195. 


Contra,  Hayes  v.  Pliclan,  4  Tlnn,  743; 
Barrett  v.  Dolan,  130  Mass.  SlJO;  39 
Am.  Rep.  450;  Kirchncr  7\  .Myers,  35 
Ohio  (St.  85;  35  Am.  Rep.  odS;  Davis 
V.  Justice,  31  Ohio  «t.  350;  -27  Am. 
Rep.  514. 

'  Jackson  v.  Brookins,  5  Ihin,  533, 
the  court  saying:  "  It  is  true  Uic  stat- 
ute docs  not  in  cxpres.-s  terms  irivc  the 
right  of  action  vpon  the  cause  oi  death. 
It  does  not  detiite  the  injuries  meant 
to  be  covered,  or  enumerate  thi'in.  It 
says    generally,  'injuries   to   person, 


§  1135 


WRONGS   IN   DOMESTIC   RELATIONS. 


lOGO 


illegal  or  void,  the  alleged  wife  cannot  recover  for  injurios 
to  her  means  of  support;  but  she  may  sue  if  she  has  heou 
injured  in  person  or  property.^  On  the  question  of 
whether  a  woman  is  injured  in  her  "means  of  suppoil" 
by  reason  of  defendant's  sales  of  liquor  to  her  husband,  it 
may  be  shown  that  she  has  since  married  again.'^  So  cvi- 
denco  that  she  was  supported  by  herself  and  by  the  county 
is  material.^  So  evidence  of  the  health  and  habits  of 
the  deceased  is  admissible  as  showing  the  amount  of  ^np. 
port  furnishe<l  by  him.'*  The  period  for  which  damages 
are  to  be  computed  is  the  time  during  which  the  husband 
could  furnish  no  or  only  partial  support  by  reason  of 
the  intoxication.®  If  liquors  are  sold  to  one  previously  in- 
temperate, and  not  supporting  his  wife,  the  wife  suing  is 
not  entitled  to  recover  as  for  the  loss  of  the  sober,  intcUi- 


property,  or  means  of  support  in  con- 
seiiiioiicc  of  the  intoxication  of  cany 
per.son.'  If  deatli  ensues  as  the  nat- 
ural ami  legitimate  result  of  the  intox- 
ication, it  is  covered  by  the  language 
of  the  statute.  All  injuries  arc  cov- 
ered tliat  arc  consequent  upon  the  in- 
toxicatiitn.  If  death  were  excluded, 
then  the  minorandtomporivry  injuries 
would  be  provided  for,  while  the 
greatest  and  most  permanent  of  all 
would  be  excluded.  The  statute 
should  not  be  so  construed.  It  ad- 
mits of  the  other  construction,  and 
that  is  more  consonant  with  its  benign 
purposes.  Its  main  oljject  was  to  pro- 
vide a  remedy  for  cases  l)eforo  reme- 
diless. Had  it  been  confined  to  inju- 
ries to  person  and  property,  it  might 
have  l)een  said  with  some  force  that 
only  those  injuries  were  meant  to  be 
covered  for  which  there  was  before 
then  a  remedy  against  the  intoxicated 
person:  Hayes  v.  Phelan,  4  Hun,  733. 
But  when  it  provided  for  injuries  to 
means  of  support,  it  made  actionable 
a  new  class  of  injuries  without  remedy 
at  the  connnon  law,  and  unprovided  for 
by  any  previous  statute.  The  wrong 
consisted  in  the  fact  that  the  sellers  of 
liquors  sluit  tlieir  eyes  to  the  condi- 
tion, in  i)erson  or  family,  of  those  to 
whom  they  sold.  They  dealt  out  an 
article  which,  under  certain  circum> 


stances  often  liable  to  exist  and  to  bo 
known  to  the  seller,  would,  witln'iit 
fail,  produce  injury,  and  ptriiips 
death.  Carelessness  anducgkct,  hkh-- 
ally  criminal,  were  shielded  under  tho 
license  law.  For  this  wrong,  tlio 
statute  under  consideration  provided 
a  remedy.  Notice  tho  class  of  per- 
sons especially  endowed  with  a  ri^^lil; 
of  action,  —  husband,  wife,  cliiM, 
parent,  guardian.  When  tiie  statiito 
provided  that  any  of  them  might  h;ivo 
a  right  of  action  for  any  injui-y  to  liia 
or  her  means  of  support,  in  conse- 
quence of  the  intoxication  of  any  one, 
is  it  reasonable  that  the  legislature 
only  meant  to  provide  for  such  eausea 
of  action  as  before  then  already  existej 
against  the  intoxicat(;d  person?  It 
seems  to  me  not;  but  that  the  main  ob- 
ject was  to  provide  a  remedy  for  an  v\'\\ 
entirely  without  remedy  before.  Tlio 
law  does  not  provide  how  tlie  injury  to 
the  means  of  support  must  be  jiro- 
duced  in  order  to  bo  actionable,  wbca 
it  is  in  consequence  of  intoxication. 
It  is  therefore  without  limit  in  tluit 
respect." 

'  Kearney  v.  Fitzgerald,  43  lown, 
580. 

'^  Sharpley  v.  Brown,  43  Hun,  374. 

*  Fox  V.  Wunderlich,  G4  Iowa,  187. 

*  Kerkow  v.  Bauer,  15  Neb.  l.K). 

*  Warrick  v.  Rouuds,  17  Neb.  411. 


1901 


INJURIES   FROM   INTOXICATING   LIQUORS. 


1135 


trald,  43  Io\\a, 


gent  society  of  the  husband,  and  of  menn^  of  support;  the 
liability  must  bo  measured  by  the  effects  produced  upon 
the  husband  and  wife  as  they  were,  and  not  as  they  might 
have  been.' 

In  AVisconsin,  in  a  case  whoit)  a  husband,  in  conse- 
quence of  becoming  intoxicated  by  liquor  sold  to  him  by 
tlio  defendant,  received  certain  injuries,  it  was  held  that 
the  wife  was  entitled  to  recover, —  1.  Compensation  for 
watching,  nursing,  and  taking  caro  of  him  during  his 
sickness;  2.  Damages  for  injury  to  her  own  health  in 
consoquenco;  3.  The  expenses  of  employing  medical  at- 
tendance and  assistance;  4.  The  cost  of  hiring  labor  to 
attend  to  his  business.^  And  in  Illinois,  where  the  1ms- 
baud  of  the  plaintiff  had  become  a  confirmed  drunkard, 
abandoning  an  occupation  in  which  ho  was  earning  five 
dollars  a  day,  and  had  squandered  a  vahiablo  property,  a 
verdict  of  ten  thousand  dollars  actual  and  two  thousand 
dollars  exemplary  damages  was  considered  not  excessive.^ 

Illustiiations. — The  defendant  Bold  liquorto  plaintiff's  lius- 
baiul,  by  which  the  latter  became  intoxicated,  and  while  in  liiat 
state  received  certain  injuries;  and  plaintiff  watched,  nursed, 
and  took  care  of  him  for  a  certain  number  of  days,  while  suffer- 
ing from  these  injuries;  injured  her  own  health  by  this  watch- 
ing, so  as  to  require  medical  treatment;  employed  two  men  at 
certain  times  to  assist  her  in  such  care;  employed  a  physician 
to  attend  him,  and  paid  the  bill;  and  had  to  hire  a  man  to  do 
work  iipon  her  farm,  which  her  husband  would  have  done  if  not 
tluis  disabled.  Held,  that  the  wife  could  recover  damages  against 
defendant  on  all  the  above  grounds;  Wightman  v.  Dcvcre,  33 
Wis.  570.  A  complaint  alleged  that  the  defendant  sold  licpior 
to  her  husband,  causing  him  to  become  intoxicated,  and  incom- 
petent to  care  for  himself;  and  that  while  so  intoxicated  ho  re- 
mained away  from  home  a  number  of  days,  obliging  her  to  do 
his  work,  in  which  time  he  spent  a  large  sum  of  money  needed 
for  tlic  support  of  plaintiff  and  family.  Held,  to  set  fortli  a 
good  cause  of  action:  Hill  v.  Berry,  75  N.  Y.  220.  It  ap- 
peared that  the  husband's  labor  afforded  the  family  their  only 
support,  and  that  he  had  neglected  to  labor,  owing  to  habit-  f 
intoxication,  and  that  plaintiff  had  become  an  object  of  public 

'  Gangly  v.  Perkins,  30  Mich.  492.  »  Jewett  v.  Wanshura,  8  Chic.  L.  N. 

"  Wightmau  v.  Devere,  33  Wis.  670.     324. 


§  1136 


WRONGS   IN   DOMESTIC   RELATIONS. 


1902 


charity.  Hchly  that  an  instruction  that  plaintiff  was  entitled 
to  recover  for  any  actual  damage  to  her  moans  of  support 
caused  in  whole  or  in  part  by  liquor  sold  to  her  husbiuul  by 
defendant,  causing  his  intoxication,  was  based  upon  suHicienfc 
evidence:  Jochers  v.  Bonpnan,  29  Kan.  109;  44  Am.  Rep.  G25. 
The  husband  of  plaintiff  was  a  cripple,  and  able  to  earn  but 
little  towards  the  support  of  his  family,  which  consisted  of 
plaintiff  and  four  children.  Ho  received  a  quarterly  pension  of 
fifty-four  dollars,  and,  on  the  day  ho  received  it,  got  intoxicated 
in  part  at  defendant's  house,  and  thereby  lost  or  had  stolen 
from  him  fifty  dollars.  Held,  that  plaintiff,  as  wife,  could  re- 
cover only  her  proportionate  share,  or  one  fifth  thereof,  and  that 
it  was  error  on  the  part  of  the  judge  below  to  refuse  so  to  chai-ge: 
Franklin  v.  Schcrmcrhorn,  8  Hun,  112. 

§1136.  Exemplary  Damages.  —  Exemplary  daniages 
may  by  recovered  under  the  statutes.*  But  thoy  cannot 
bo  given  without  proof  of  actual  damages.^  Exemplary 
damages  may  be  given  though  the  defendant  is  liable 
also  to  the  criminal  law."  Where  actual  damages  are 
proved,  exemplary  damages,  it  is  held  in  some  cases,  may 
be  awarded  without  proof  of  aggravating  circumstances.* 
But  in  others,  it  is  required  that  the  plaintiff  shall  show, 
not  only  some  damage  suffered,  but  also  some  aggravating 
circumstances  on  the  part  of  the  seller  accompanying  the 
transaction.^     It  will  go  in  aggravation  of  damages,  and 


*  Kclirig  V.  Peters,  41  Mich.  475. 
The  surety  oii  a  lifjuor-tlealer's  bond 
conditioned  to  pay  "  any  damage  any 
person  may  sustain,  or  which  may  re- 
sult from  the  drinking  of  any  wine 
or  beer,  or  any  liquor  got  or  pro- 
cured "  on  tlie  premises,  is  liable  for 
exemplary  as  well  as  compensatory 
damages  to  any  amount  not  exceeding 
the  bond:  Richmond  i\  Shickler,  57 
Iowa,  480.  Contra,  Cobb  v.  People, 
84  lU.  511. 

■^  Calloway  v.  Laydon,  47  Iowa,  456; 

29  Am.  Hep.  4S'J;  Cranssly  i\  Perkins, 

30  Mich.  495;  Wightman  v.  Devere, 
3.3  Wis.  570;  Keedy  v.  Howe,  72  111. 
133;  Gilmore  ;•.  Mathews,  07  Me.  517. 

*  .lockers /".  Borgman,  29  Kan.  109; 
44  Am.  Rep.  025;  Brannon  v.  Silver- 
nail,  81  111.  434.  Contra,  Koerner  v. 
Oberly,  50  Ind.  284;  26  Am.  Rep.  34; 
Schafer  v.  Smith,  03  Iiid.  226. 


*  Hackett  ?'.  .Sm'dioy,  77  111.  109; 
Schneiders.  Hosier,  21  Ohio  St.  UN; 
Durvy  v.  Blurn,  11  Ohio  St.  ',]W2; 
Goodenough  v.  McGrew,  44  Iowa,  070. 

"  Franklin  D.  Schermcrh(^rn,  S  Hun, 
112;  Ganssly  v.  Pcrkin.s,  30  Mich. 
492;  Kellerman  r.  Arnold,  71  111.  O^'J; 
Keedy  ?;.  Howe,  72  111.  133;  Fcntz  r. 
Meadows,  72  111.  540;  Albn'clit  v. 
Walke/,  73  111.  09;  Brantigau  v. 
White,  73  HI.  501;  Confrey  /•.  Stark, 
73111.  187;  Graham?;.  Fulford,  73  111. 
596;  McEvoy  v.  Humphrey,  77  HI. 
388;  Rawlins  v.  Vidvard,  34  lluu,  'JU,'); 
Fox  V.  Wunderlieh,  04  Iowa,  1S7. 
They  are  recoverable  only  wlicn  the 
act  of  selling  was  willful,  wanton,  o- 
so  reckless  as  to  deserve  punishment; 
Kadgin  v.  Miller,  13  111.  App.  474. 
They  cannot  be  imposed  if  it  does  not 
appear  that  any  recpiest  or  suggestion 
had  been  made  to  the  defendant  to 


19G3 


INJURIES    FROM    INTOXICATING   LIQUORS.        §  1137 


to  support  tho  awarding  of  exemplary  diimagos,  that  the 
seller  had  been  notified  not  to  soil  to  the  drunkard;'  or 
that  he  know  liim  to  bo  in  the  liabit  of  getting  intoxi- 
cated;" or  tliat  ho  sold  tho  liquor  in  violation  of  law.'"'  So 
on  this  point  evidence  of  mental  suffering  on  tho  part  of 
tho  wife  or  other  relative  is  relevant.''  So  is  evidence  of 
sales  made  by  the  defenflant  to  tho  husband  after  tho  com- 
uiencoment  of  tho  ^vife's  action  for  damages.^  So  the  wife 
may  show  tho  numlM3r  and  ages  of  her  children,  if  she 
jilso  shows  that  tho  defendant,  prior  to  selling  the  liquor 
to  her  husband,  had  knowledge  that  she  had  such  chil- 
dren, and  that  they  wore  in  danger  of  being  injured  or 
coiui>elle<l  to  leave  home.® 

g  1137.  Remote  Damages.  —  The  sale  of  the  liquor 
must  be  the  natural  and  immediate  cause  of  the  death.^ 
Thus  where  a  husband  became  grossly  intoxicated  from 
li(juor  sold  to  him  by  defendant,  and  while  being  taken 
home  in  his  wagon  in  this  state  received  injuries  from  a 
barrel  of  salt  falling  upon  him,  from  which  injuries  ho 
(lied,  it  was  held  that  his  widow  had  no  right  of  action 
under  the  statute,  the  death  of  the  husband  being  tho  im- 
mediate, and  th&  intoxication  of  the  husband  only  the 
remote,  cause  of  the  injury  to  her.*    So  where  the  husband 


refuse  liqnor  to  the  injured  person,  or 
that  lie  know  that  tho  latter  had  any 
family:  Steele  v.  Thompson,  42  Mich. 
o'J4. 

'  JockerH  c.  Borgnian,  29  Kan.  109; 
41  Am.  liL'p.  025;  McEvoy  v.  Hum- 
jjIu'lv,  77  111.  3S8 ;  Kellcrnian  v. 
AriioUl,  71  111.  032;  Brautigan  v. 
White,  73  111.  501. 

-  W(Ttz  V.  Ewen,  50  Iowa,  34. 

3  Allison  r.  Shay,  7  Chic.  L.  N.  152; 
Schafcr  v.  Smith,  4  Cent.  L.  .1.  271; 
Ntii  r.  McKechnie,  95  N.  Y.  032;  47 
Ami.  Kc',).  S9;  Davis  v.  Standish,  26 
Him,  (iOS.  Contra,  Struble  v.  Nod- 
with,  1 1  Inil.  o5. 

*  Lawson  on  Civil  Remedies,  39. 

^  Bean  r.  Green,  33  Ohio  St.  444. 

« Ward  V.  Thonipaou,  48  Iowa,  688. 


T  Hart  V.  Ihiddleson, 20 Til.  App.  CIS. 

^  Krach  v.  Ileihiian,  .')3  Iml.  517, 
tho  court  saying:  "Tho  defendants, 
in  causing  the  intoxication  fif  tho  de- 
ceased, could  not  have  anticijiated 
that,  on  his  way  homo,  ho  M'ould  be 
fatally  injuroil  liy  tlio  salt-barrel. 
That  was  an  extraordinary  and  fortui- 
tous event,  not  naturally  residting 
from  tho  intoxication.  Suppose,  by 
way  of  illustration,  tliat  a  person,  by 
reason  of  intoxication,  lies  down  under 
a  tree,  and  a  storm  blows  a  lind)  down 
upon  him  and  kills  him,  or  that  light- 
ning strikes  the  tree  and  kills  liim, 
could  it  be  said,  in  a  lo'.,'al  sense,  that 
his  death  was  caused  by  intoxication? 
In  the  chain  of  causation  tho  intoxica- 
tion may  have  been  the  remo'e  cause 


^ 

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§  1137 


WRONGS   IN   DOMESTIC   RELA.TIONS. 


19G1 


on  becoming  intoxicated  wandered  onto  a  railroad  track 
and  w'us  killed,  it  was  held  that  the  injury  was  too  remote.' 
If  the  death  of  a  party  who  receives  a  wound  while  in- 
toxicated can  be  traced  as  the  natural  and  probable  resuli 
of  any  new  or  intervening  cause,  such  as  reckless  exposure 
of  himself,  or  amputation  of  the  wounded  limb  when  am- 
putation was  not  necessary,  the  liquor-seller  will  not  be 
responsible  to  the  wife  for  the  death.''  A  wife  cannot 
maintain  an  action  for  damages  received  by  her  by  fall- 
ing on  a  slippery  sidewplk  while  following  her  intoxicated 
husband  to  see  whore  he  obtained  liquor.'  A  death  result- 
ing from  an  as^  tuH  committed  upon  the  husband  for 
abusive  language  '-.v vl  by  him  wdiile  intoxicated  is  too 
remote.^  But  an  acvicD.  lies  for  direct  injuries  done  by 
the  intoxicated  per^<" 'i,  ;»8  well  as  for  damage  arising  from 
the  intoxication.  Thus  an  action  lies  against  the  liquor- 
seller  for  direct  damage  done  by  the  drunken  person,  as 
where  one  was  wounded  by  the  discharge  of  a  pistol 
flourished  by  a  drunken  man  on  a  freight  train."  A 
suicide  may  be  deemed  attributable  to  a  sale  of  iulo.xi- 
cating  liquors." 

Illustrations.  —  An  intoxicated  person  going  home  atni^^ht 
had  to  cross  a  railroad.  Next  morning  ho  was  found  on  iho 
track,  killed  by  being  run  over  by  the  cars.  Held,  that  the  in- 
toxication was  tlie  proximate  cause  of  his  death:  Schrordrr  v. 
Crmrford,  1)4  III.  SoT;  34  Am.  Rep.  23G.  The  father  of  the 
minor  plaintiff,  while  intoxicated  by  liquor  sold  him  by  the  de- 
fendant, nuirdcred  the  plaintiff's  mother  and  committed  suiciile. 
The  i)laiutifl'  was  dependent  on  liis  father  for  support.     /A//, 


of  hia  death,  because  if  he  had  not 
been  intoxicated  lie  would  uot  have 
placed  himself  in  that  position,  and 
therefore  would  not  have  been  struck 
by  tlie  limb  or  lightning.  In  the  case 
supposeil,  it  may  l)e  assumed  as  ''lear 
that  tlio  parties  causing  the  intoxica- 
tion would  not  bo  liable  under  the 
statute  to  the  widow  as  for  an  injury 
to  her  caused  by  the  intoxication  of 
the  d^iceased.  Yet  there  is  no  sub- 
stantial diflFcrence  between  the  case 
supposed  and  the  real  case  here." 


1  Collier  v.  Earl}',  54  Ind.  .'"'.i. 
Contrii,  Schroeder  t\  Crawford,  !)4  111. 
357;  34  Am.  Ben.  23G. 

•^  Schmidt  v.  Mitchell,  84  111.  I'.i.'.; 
25  Am.  Kep.  440. 

*  Johnson  v.  Drummond,  10  111. 
Apn.  041. 

*'Shugart  v.  Egan,  83  111.  5U;  '.'.') 
Am.  Rep.  359. 

*Kiug  V.  Haley,  86  111.  100;  'JO 
Am.  Rep.  14. 

0  Blatz  V.  Bohrback,.42  Uuu,  40J. 


10G5 


INJURIES    FROM    IXTOXICATIXG    LIQUORS. 


Uol 


tliiit  the  defendant  was  liable:  Next  v.  AfrKrchnic,  05  X.  Y.  Gr52; 
47  Am.  Rep.  80.  A  l)oy  of  eighteen  got  drunk  in  ooni])any 
with  the  defendants,  who  paid  for  sonic  of  the  liquor,  whih;  the 
Itoy  paid  for  the  rest.  While  drunk  the  boy  assaulted  the 
plaintiff  of  his  own  volition.  Held,  that  an  action  against 
tlic  defendants  on  the  ground  that  their  conduct  in  furnishing 
tlio  iiijuor  caused  the  assault  could  not  be  maintained:  S  win  fin 
V.  Loivry,  37  Minn.  345.  A  liquor-seller  sold  to  a  man  who  got 
(hunk  and  committed  a  murder,  for  which  hewfs  sent  to  prison 
for  life.  Held,  that  the  murderer's  wife  could  recover  against 
tho  li(pior-8eller:  Beers  v.  Walkizer,  43  Hun,  254.  The  action 
was  for  the  death  of  a  person  who  having  been  drinking,  lost 
his  way,  drove  into  the  water,  and  was  drowned.  JTeld,  that  if 
lie  lust  his  way  because  of  the  intoxication,  but  afterwards  be- 
came sober,  and  in  an  effort  to  regain  the  road  drove  over  the 
bank  to  his  death,  the  drowning  was  caused  by  the  intoxication: 
Kcri'OW  v.  Bauer,  15  Neb.  150.  Action  against  S.  for  furnish- 
ing li(pior  to  D.  It  appeared  that  D.,  on  returning  from  a  fish- 
ing excursion,  drank  at  S.'s  bar  at  least  ten  times  between  four 
anil  six  o'clock  in  the  afternoon,  and  then  started  down  the 
lake  with  W.  in  a  small  boat,  which  was  capsized,  and  1).  was 
drowned;  that  W.,  though  not  so  good  a  swimmer  as  D.,  reached 
the  shore  alive.  S.  claimed  that  he  sold  the  liquor  under  an 
arrangement  with  D.  that  D.  should- go  home  in  S.'s  stage,  but 
that  W.  induced  D.  to  attempt  to  go  to  W.'s  house.  Held,  that 
the  jury  were  not  confined  to  an  inquiry  as  to  whether  intoxi- 
cating liquor  was  the  innnediate  cause  of  the  death;  that  if  it 
was  the  proximate  cause,  they  were  jvistified  in  rendering  a 
verdict  for  the  plaintiff:  Davis  v.  Standish,  26  Ilun,  008.  A's 
bar-tender  sells  liquor  to  H,  and,  an  altercation  arising,  the 
bar-tender  throws  a  glass  at  B,  which  misses  him,  and  injures  C. 
Ifdd,  that  the  injury  is  not  the  proximate  consequence  of  A's 
act  in  selling  the  liquor:  Lvekcn  v.  People,  3  111.  App.  375. 


§  1138.     Mitigfation  of  Damages  —  Evidence.  —  The 

defendant  may  show  in  mitigation  of  damages  that  he 
was  lawfully  licensed  to  sell  liquors  at  the  time  of  the  sale 
in  question;*  that  ho  had  instructed  his  servant  not  to  sell 
to  the  person,  but  his  orders  had  been  disobeyed;"  that  he 
had  refused  to  sell,  but  the  party  had  procured  the  liquor 
by  a  trick;'  that  the  alleged  buyer  in  the  period  became 

'  Lawson  on  Civil  Remedies,    42.     Kcedy  t'.  Howe,  72  111.   133;  Feiitz  v. 
Co)it-,i,  lloth  V.  Eppy,  80  HI.  283.  Meadows,  72  111.  540. 

'lirautigaa  v.  White,  73  111.  561;        » Bates  v.  Davia,  70X11.  223. 


§1139 


WRONGS    IN   DOMESTIC    RELATIONS. 


lOGG 


intoxicalcd  by  liquors  which  ho  bought  of  other  persons.' 
But  to  render  evidence  of  recoveries  from  other  partir  .s 
admissible  to  reduce  damages,  it  must  be  shown  that  such 
other  recoveries  were  for  sales  during  the  same  time  as 
that  covered  by  the  alleged  sales  by  defendant.'* 

§  1139.  Evidence — lu  General.  —  Evidence  is  admissible 
to  show  the  fact  of  the  party's  intoxication  before  it  is 
shown  that  such  intoxication  was  caused  by  the  defend- 
ant,' So  evidence  is  admissible  of  the  practice  of  the 
drunkard  in  visiting  other  saloons;  *  or  of  his  inability  to 
obtain  employment  on  account  of  his  habit.*  The  wife  may 
show  that  her  husband  supported  her,  and  that  she  had 
no  other  means  of  support."  In  an  action  for  injuries  to 
a  wife  arising  from  the  sale  of  liquor  to  her  husband, 
there  should,  as  a  rule,  be  no  evidence  allowed  of  facts 
antecedent  to  the  unlawful  acts  complained  of,  except  to 
show  his  habits  and  circumstances  before  they  were  coni- 
niitted;  but  the  jury  should  be  told  to  discriminate  be- 
tween losses  caused  by  commercial  changes  and  those 
which  result  from  drunken  neglect.  The  evidence  of  his 
pecuniary  condition  before  the  acts  complained  of  is  not 
to  be  introduced  as  showing  a  substantive  cause  of  action, 
but  to  be  considered  with  other  facts  as  showing  the  dam- 
age sustained  by  plaintiflF.^  Evidence  as  to  the  number, 
age,  and  sex  of  her  children  is  not  admissible  to  affect 
the  question  of  damages.^  Evidence  of  the  value  of  the 
estate  of  the  husband  before  the  liquor  law  took  eflect, 
and  the  reduced  condition  of  his  pecuniary  affairs  at  the 
time  of  the  trial,  is  inadmissible."  A  judgment  obtained 
by  her  in  an  action  against  another  party  for  injury 
thereto  accruing  at  the  same  period  is  admissible  to  show 


'  Kirchner  v.  Myers,  35  Ohio  St.  85; 
35  Am.  Dec.  578. 

''  Jacksou  i\  Noble,  54  Iowa,  641, 


*  Roth  V.  Eppy,  80  111.  283, 
«  Mayers  v.  Smith,  121  111.  442. 
'  Friend   v.    Dunks,    37    Mich. 


^  Woolheatlier  v.  Risley,    38  Iowa,     Dunlavcy  v.  Watson,  38  Iowa,  3'.)S. 
486.  •*  Huggins  v.  Kavauagh,  52  Iowa,  'MS. 

*  Uemmens  v.  Beutley,  32  Mich,  89,        *  McCaua  v.  Roach,  81  111.  213. 


19G7  INJURIES   FROM   INTOXICATING   LIQUORS.        §  1139 


the  actual  cxtont  of  the  -wrong  done  by  the  defendant.'  But 
evidence  is  inadmissible  of  sales  made  prior  to  the  pass- 
age of  the  statute  giving  the  remedy,^  or  subsequent  to  the 
bringing  of  the  action.'  The  evidence  must  bo  confined 
to  the  cause  stated  in  the  declaration  or  petition;  and 
wliere  the  injury  alleged  is  to  means  of  support,  it  is  error 
to  admit  proof  of  injury  to  property/ 

Under  those  acts  which  give  a  remedy  in  case  only  of 
Sides  or  gifts  made  in  violation  of  their  provisions,  the 
proof  is  required  to  be  more  direct,  such  an  action  being 
in  its  nature  qvxisi  criminal.  Where  the  action  is  brought 
for  damages  caused  by  the  sale  of  liquors  to  an  habitual 
drunkard,  it  must  be  shown  that  the  defendant  knew  him 
to  be  such,*  although  it  need  not  be  proved  that  he  was 
intoxicated  at  the  time  the  liquor  was  furnished."  But 
knowledge  of  the  intemperate  habits  of  the  person  may 
be  proved  by  reputation.'  And  in  the  case  of  a  sale  to  a 
minor,  the  burden  of  proof  is  upon  the  defendant  to  show 
that  ho  believed  him  to  be  of  full  age.^  And  it  has  been 
held  that  a  sale  to  a  minor  who  asks  for  the  liquor  in 
behalf  of  one  to  whom  it  might  lawfully  be  sold  is  in  con- 
travention of  the  statute.^  The  furnishing  of  liquors  to 
a  minor,  as  prohibited  in  the  statute,  is  complete,  although 
the  liquor  may  have  been  purchased  by  another,  and  sup- 
plied by  the  seller  in  pursuance  of  such  purchase.*"  And 
the  statement  of  a  physician  who  was  in  the  habit  of  get- 
ting intoxicated,  made  at  the  time  of  his  purchases  of 
liquor,  that  he  wanted  it  for  a  patient,  and  for  medical 
purposes,  does  not,  it  has  been  held,  in  the  absence  of  proof 
to  the  contrary,  raise  the  presumption  that  the  sales  were 


•  Engleken  v.  Webber,  47  Iowa,  558. 
^  Dubois  r.  Miller,  5  Hun,  332. 

'  Woolheather  v.  RUley,   38  Iowa, 
486. 

*  Hackett  v.  Smelsley,  77  III.  109. 

'  Markcrt  v.    Hoffner,  4  Am.   Law 
Rec.  111. 
^  Fouutain  v.  Draper,  49  Ind.  441. 


T  Elam  V.  State,  24  Ala.  77;  Wick- 
wire  i\  State,  ID  Coiiu.  477;  State  r. 
Kalb,  14  Ind.  404. 

*  Farbach  v.  State,  24  Ind.  77;  Rine- 
man  v.  State,  24  lud.  bO;Goetz  i*.  State, 
41  Ind.  1G2. 

»  State  V  Fairtteld,  37  Me.  517. 

"  State  V.  Muuson,  25  Ohio  St.  3S1. 


§§  1110,  1141      WRONGS    IN    DOMESTIC   RELATIONS.  1008 

made  to  tlic  patient.'  The  sales  of  liquor  need  not  bo 
jn'oved,  as  in  a  criminal  case,  beyond  a  reasonable  doubl.'- 
Tbe  jury  must  be  satislied  by  a  i)reponderaiu'o  of  evi- 
dence that  delen<lant  contributed  to  the  intoxication  ol' 
the  plaintiir's  husband  in  an  appreciable  degree/'  liiit 
proof  Ihat  the  husband  bought  liquor  of  defendant  will 
not  shirt  the  burden  upon  the  latter  to  show  that  his  licpior 
did  not  cause  the  former's  drunkenness.''  A  wife  cannot 
recover  upon  proof  merely  that  defendant  was  a  liquor- 
seller,  that  her  husband  had  been  in  his  store,  and  hud 
been  seen  coming  therefrom  intoxicated.® 

§  1140,  Law  and  Pact. — What  constitutes  intoxication 
is  a  quest io;.  of  fact,  to  be  determined  by  the  jury  upon 
the  wholes  evidence,  in  the  light  of  their  own  observation.* 
It  is  improjier  for  the  court  to  charge  as  a  matter  of  law 
that  the  selling  of  intoxicating  liquors  to  a  p^  ^on  far 
gone  in  liabits  of  intoxication,  and  who  had  become  dis- 
eased, bodily  and  mentally,  would  bo  more  aggravating 
than  selling  to  one  not  so  badly  addicted  to  intomperanco, 
or  who  had  more  vigor  of  body  or  mind.  Such  questions 
are  for  the  jury.'  Where  a  wife  sues  for  an  injury  to  lior 
means  of  support  by  the  sale  of  intoxicating  li(piors  to 
her  husband,  the  question  of  what  circumstances  will  war- 
rant cxenqdiiry  damages  is  for  the  jury.' 

§  1141.  Pleading.  —  Though  the  petition  may  allci^'o 
that  the  intoxication  was  caused  in  wh9le  by  the  defend- 
ant, a  recovery  may  bo  had  where  the  proof  shows  that  it 
was  caused  in  part  only  by  him.'  But  a  complaint  on 
the  bond,  under  the  Indiana  statute,  which  averred  (Iiat 
the  intoxication  was  caused  in  part  by  liquors  sold  by  Iho 

•  Boyd  r.  Watt,  27  Ohio  St.  259.  «  Roth  v.  Eppy,  80  III.  283. 

'  Lyon  r.  Fleahinann,  34  Ohio  St.  '  Lmlwig  r.  Sagcr,  84  111.  \)0. 

151.  *Gooclcnough  v.  McGrcw,  44  Iowa, 

*  Chase  ?•.  Kunuiston,  76  Me.  209.  G70;  Schimmclfcaig   v.    Uouovau,    l.'j 

♦  Maeleod  c.  Geyer,  5.3  Iowa,  615.  111.  App.  47. 

■>  Loveku  V.  Briggs,  32  Han,  477.  "  Rotli  v.  Eppy,  80  111.  283. 


1000 


INJURIES    FROM    INTOXICATING    LIQUORS.        §  1141 


(Icfoiuliuit's  principal,  and  that  wliilo  so  intoxicated,  and 
by  reason  of  such  intoxication,  the  j)Urchaser  caused  dani- 
uLje,  lias  been  beld  bad.'     Under  the  Now  Hampshire  stat- 
iile,  a  declaration   in   trespass   alleging   an    assault   and 
battery  as  having  l)ecn  committed  directly  by  the  del'end- 
ant   is    sullicient    where    the    plaintiff   seeks    to    recover 
damages  I'or  an  assault  upon  him  committed  by  a  i)erson 
while  in  a  state  of  intoxication  caused  by  licpiors  unlaw- 
fully furnished  hini  by  defendant.'^    In  Indiana,  it  is  held 
that  the  ccnplaint  must  distinctly  aver  that  the  injury 
complained  of,  and  the  damages  sought  to  bo  recovered, 
resulted  in  consequence  of  a  sale  of  intoxicating  licpiors; 
juul  therefore  an  averment  that  whilst  A  was  intoxicated 
by  reason  of  liquor  sold  him  by  C,  he  inflicted  a  mortal 
wound  on  the  husband  of  the  plaintiff,  causing  his  death, 
does  not  suflicicntly  show  that  tlie  wound  was  inflicted  by 
reason  of  the  intoxication  of  A.*  But  a  complaint  by  awife, 
alleging  that  her  husband  becarie  intoxicated  by  liquor 
purchased  from  the  defendant,  and  thereby  neglected  his 
work,  squandered  his  money,  and  damaged  tlie  plaintiff 
ill  her  means  of  support,  is  gooJ.^     A  wife's  complaint 
for  causing  her  husband's  intoxication  need  not  aver  the 
kind  of  intoxicating  liquor  sold,  nor  that  the  defendant 
had  no  license,  nor  that  such  liquor  was  sold   on   his 
premises,  nor  that  the  husband  was  intoxicated,  or  in 
the  habit  of  becoming  so,  at  the  time  of  such  sale.''     But 
a  complaint  which  merely  avers  that  defendant  sold  or 
gave,  or  permitted  to  be  sold  or  given,  to  a  third  person 
named,  a  quantity  of  intoxicating  liquor,  which  such  per- 
son then  and  there  drank,  and   by  drinking  which  he 
became  intoxicated,  does  not  sufficiently  show  that  the 
defendant  caused  the  intoxication  to  render  him  liable. 
Under  such  averment,  it   may  be  that  the  li([Uor  was 
given  by  some  other  person  than  defendant."     A  coin- 


'  Schafer  v.  Cox,  49  Iiid.  460. 
'  Bu(lg(!  V.  Hughes,  53  N.  H.  015. 
'  Schafer  v.  Cox,  49  lud.  4G0. 
124 


*  Barnaby  v.  Wood,  50  Iiid.  405. 

*  Walscr  V.  Kerrigan,  5(5  Iml.  301. 
"  DittOQ  V.  Morgan,  56  lud.  60. 


§1142 


WRONGS   IN   DOMESTIC   RELATIONS. 


1970 


plaint  wnich  avers  that  defendant  kept  a  liquor-shop, 
that  plaintiff's  husband  became  intoxicated  while  i\n. 
fendant  was  in  possession  thereof,  and  that  the  intoxica- 
tion was  caused  by  liquor  there  given  away  or  sold  by 
defendant,  charges  a  sale  or  giving  away  by  defendant  to 
plaintiff's  husband  with  reasonable  certainty.'  An  aniond- 
ment  to  a  declaration  is  allowable  which  alleges  that  the 
plaintiff's  husband,  while  drunk,  beat  her,  the  oritj;inul 
declaration  having  averred  that,  by  reason  of  defendant'8 
sales,  her  husband  became  intoxicated,  unable  to  aliond 
to  business,  failed  to  sui)port  her,  and  that  she  was  other- 
wise  injured.  The  amendment  introduces  no  new  cause 
of  action.'^  Case  is  the  proper  form  of  action  for  recover- 
ing damages  under  the  Michigan  civil  damage  law,  while 
assumpsit  is  the  proper  form  for  recovering  back  money 
paid  for  liquor;  and  these  two  demands  cannot  be  joined 
in  one  count.^ 


§  1142.  Defenses.  —  Tliat  the  person  suing  contrib- 
uted to  the  injury  sued  for  is  a  good  defense.  The  wife 
cannot  recover  damages  from  the  seller  of  intoxicating 
liquors  for  injuries  committed  by  her  husband  upon  her- 
self while  he  was  intoxicated,  if  she  has  contributed  to 
his  intoxication  by  purchasing  the  liquors,  or  uniting 
with  him  in  drinking  them.*  The  fact  that  the  wife 
has  upon  other  occasions  authorized  the  sale  of  liquors 
to  lier  husband  will  not  prevent  her  recovery  of  dam- 
ages for  a  particular  sale,  if  she  did  not  assent  to  that. 
And  her  giving  him  money  to  procure  liquor  does  not 
show  that  she  contributed  to  his  intoxication,  in  the 
absence  of  proof  that  he  obtained  the  liquor  by  means  of 
such  money .^  So  it  is  not  proof  of  contributory  ne<:jli- 
gence  to  show  that  she  was  in  the  habit  of  letting  him 

>  Ford  V.  Ames,  36  Hun,  571.  Elliott  v.  Berry,  34  Hun,  129;  Rose- 

•^  Cliaso  ?>.  Kenniston,  70  Me.  209.  crants  r.  Shoemaker,  60  Midi.  4. 

3  Friend  v.  Dunks,  37  Mich.  25.  ^  Kafferty  v.   Buckman,    46  Iowa, 

*  Englekea  v.  Hilger,  43  Iowa,  563;  195. 


1971  INJURIES   FROM   INTOXICATLNQ   LIQUORS.       §  1142 


wife 
ating 
her- 
C(l  to 
niting 
wife 
quors 
(lara- 
that. 
■es  not 
11   the 
ans  of 
ncp;li- 
r  him 

;  Kose- 
4. 
[6  lowa, 


have  portions  of  his  wages  previously  deposited  witli  her, 
having  reason  to  believe  he  would  spend  them  for  such 
drink.'     And  the  purchase  by  her  of  liquor  for  the  use 
of  iier  husband  at  home,  in  order  to  prevent  him  from 
squandering  time  and   money  at  saloons,  or  under  his 
compulsion,  is  not  such  a  complicity  on  her  part  as  to 
bar  her  recovery  for  such  injuries.''    The  fact  that  the 
wife  accompanied   her   husband   to  various   places  and 
gatherings,  and  drank  liquors  with  him,  and  that  the 
husband  kept  liquors  in  his  home,  and  drank  the  same  at 
home  with  the  wife's  knowledge  and  approval,  and  that 
all  of  such  drinking  on  the  part  of  her  husband  was  with 
her  knowledge  and  consent,  is  proper  to  be  coi.sidered  by 
the  jury  on  the  question  of  damages,  especially  as  the 
statute  allows  exemplary  damages.    But  such  facts  do  not 
constitute  a  bar  to  the  action,*  and  the  wife  may  prove 
that  her  husband  compelled   her  to  attend  such  places, 
and  may  be  permitted  to  show  the  whole  circumstances 
of  the  case  as  explanatory  of  her  conduct.     Where   the 
plaintiff's  husband  was  an  habitual  drunkard,  and    she 
had  forbidden  the  sale  of  liquors  to  him  by  the  defend- 
ant, but  a  day  or  two  after  such  notice  she  went  to  the 
defendant's   saloon  in  company  with  her  husband,  and 
in  his    presence    directed  the  defendant  to  sell  him  all 
the  liquor  he  asked  for,  it  was  held  that  the  only  reason- 
able inference  from  such  conduct  was,  that  the  plaintiff 
acted  under  the  coercion  of  her  husband,  and  that  the 
jury  had  a  right  to  find  that  the  defendant  drew  this  in- 
ference, and  therefore  knew  that  she  was  not  acting  vol- 
untarily.''    A  wife's  right  of  recovery  is  not  affected  by 
the  fact  that  she  had  signed  the  defendant's  petition  for 
a  dram-shop  license.®    The  plaintiff's  allowing  his  son  to 

'  Huff  D.  Aultman,  69  Iowa,  71;  58        »  Hackett  v.  .Smelslcy,  77  111.  109. 
Am.  Rep.  213.  ♦  Jewett    v.   Waushura,    4.3    Iowa, 

''  Kuarney  v.   Fitzgerald,  43  Iowa,  574. 
5S0;  Ward  v.  Thompson.    48    Iowa,        •'  Jockers  v.  Borgmau,  29  Kau.  109; 

588.  44  Am.  Rep.  625. 


§  1142 


WRONGS   IN    DOMESTIC   RELATIONS. 


1972 


take  his  horse  to  drive  to  a  neighbor's,  though  knowing 
the  son  to  be  of  intemperate  habits,  is  not  such  con- 
tributory  negligence  as  to  defeat  his  right  of  action  for 
the  value  of  his  horse,  where  the  sou  had  gone  to  a 
saloon,  and  procured  liquor,  and,  while  under  its  in- 
fluence,  driven  the  horse  so  violently  that  he  died.' 

Illustrations. — The  plaintiff,  an  innkeeper,  unlawfully  sold 
the  defendant  intoxicating  liquor,  by  reason  whereof  he  bt^caniu 
intoxicated,  and  behaved  in  a  disorderly  manner,  and  assaulted 
the  plaintiff  in  the  inn.  Held,  that  he  was  not  entitled  to  re- 
cover; Aldrich  v.  Harvey,  50  Vt.  162;  28  Am.  Rep.  501. 

>  Bertholf  v.  O'Reilly,  74  N.  Y.  609;  30  Am.  Rep.  323. 


1972 

•wing 
con- 

n  for 
to  a 

;s   iii- 

1» 

ly  sold 

ecanif 

aulted 

to  re- 


TITLE  XIV. 

NEGLIGENCE. 


§1 

§1 
§  1 
§  I 
§  I 
§1 

§i: 

Artie] 

glycol 
ill  llic 
ness  i; 
at  ];i\\ 
actual 
is  liab 
plosioi 
his  pc 
keepiii 
idcuco 
must 
powde; 
kept  ii 
saiico.^ 

'Mwr 
Am.  Dec. 
St.  i>;;;i;  < 

574;  1(>  / 
3Jur.  -, 
Vus  lil7. 


TITLE  XIV. 

NEGLIGENCE. 


CHAPTER  LVm. 

DANGEROUS  AGENCIES. 

§  1 143.  Keeping  or  shipping  danccrous  or  noxious  articles  or  property. 

S  1 1  U.  Vcmlin-,  letting,  or  Iciuling  daugeroua  articles. 

§  1 14.>.  Use  of  firo-iirms. 

g  1 14!).  Explosion  of  steam-boilers. 

§  1 147.  Blaflting  rocks. 

§  1 143.  Coutagioua  diaoases  —  Uuwholewmo  food. 

g  1143.  Keepingr  or  Shippingr  Dangrerous  or  Noxious 
Articles  or  Property. -Tl^o  keeping  of  gunpowder,  nitro- 
glycerine, or  otlier  explosive  substances  in  large  quanlilies 
m  11.0  vicinity  of  one's  dwelling-house  or  place  of  busi- 
ness  IS  a  nuisance,  and  may  be  abated  as  such  by  action 
at  luu',  or  by  injunction  from  a  court  of  equity,'  and  if 
actual  injury  results  therefrom,  the  person  keeping  thepi 
IS  liable  therefor,  even  though  the  act  occasioning  tiie  ex- 
plosion  IS  duo  to  other  persons,  and  is  not  chargeable  to 
lis  personal  negligence.=»  But  in  order  to  render  such 
keeping  of  explosives  a  nuisance,  negligence  or  iinprov- 
idouce  in  keeping,  or  the  keeping  of  large  quantities, 
must  bo  alleged  and  proved.  The  mere  fact  that  gun- 
powder and  other  explosives  in  reasonable  quantities  are 
kept  ill  a  public  place  is  not  sufficient  evidence  of  a  iiui- 
saiico.^     If  the  evidence  shows  that  it  is  improperly  kept 


§  1143 


MEGLIOENCB. 


197G 


in  an  exposed  situation,  where  the  liability  to  explosion 
and  consequent  danger  is  great,  the  fact  of  nuisance  is 
established,  and  the  owner  or  keeper,  or  both,  are  liable 
not  only  to  indictment,  but  also  for  all  daix^ages  that 
result  therefrom.^  In  determining  the  question,  the  lo- 
cality,  the  quantity,  and  the  manner  of  keeping  will  all  be 
considered,  as  well,  also,  as  the  nature  of  the  explosive  and 
its  liability  to  accidental  explosion.''  A  railroad  company 
storing  explosives  in  a  depot-building  having  a  defective 
chimney  flue,  by  reason  whereof  the  building  takes  fire, 
and  there  is  an  explosion  injuring  the  plaintiff's  neigh- 
boring property,  is  liable  for  the  injury.^ 

A  person  is  liable  for  injuries  caused  by  the  escape  of 
noxious  gases  or  liquids,  where  the  escape  is  through  his 
neglect  or  want  of  care.*  A  lessee  may  maintain  an  action 
against  one  who  has  laid  gas-pipes  in  neighboring  streets 
so  imperfectly  that  gas  escapes  therefrom  through  the 
ground  and  into  the  water  of  a  well  upon  premises  hired 
and  used  by  him  for  a  livery-stable,  and  thereby  renders  it 
unfit  for  use,  and  makes  the  enjoyment  of  his  estate  less 
beneficial,  although  the  nuisance  may  have  existed  in  a 
less  degree  when  tho  premises  were  hired;  and  may 
recover  for  the  inconvenience  to  which  he  has  been 
thereby  subjected,  and  expenses  incurred  in  reasonable 
and  proper  attempts  to  exclude  th  j  gas  from  the  well,  but 
not  for  injury  caused  by  allowing  his  horses  to  drink  the 
water  after  he  knew  that  it  was  corrupted  by  the  gas.* 

One  who  knowingly  plants  on  his  land  a  noxious  tree 
whose  limbs  project  over  an  adjoining  land  in  which  cattle 
are  postured  is  liable  for  an  injury  to  the  cattle  caused  by 


1  Mjera  v.  Malcolm,  6  Hill,  292;  41 

Am.  l>ec.  744. 

''  Wood  on  Nuisances,  153, 

^  Denver,  South  Park  etc.  R.  R.  Co. 

V.  Conway,  8  Col.  1 ;  i34  Am.  Rep.  537. 


'*  Sherman  i\  Fall  River  Iron  Works, 
2  Allen,  524;  79  Am.  Dec.  799.  But  ho 
cannot  recover  for  injury  to  hia  Inisi- 
nesa  if  it  ia  illegal,  as  where  i*;  is 
carried  on  without  a  license:   Slier- 


♦Tlionipson  on  Negligence,  107.   See    man  v.  Pall  River,  5  Allen,  213.    And 


also  (ras  Companies,  ante,  Title  II., 
Corporatious;  and  Nuisance,  post,  Div. 
lU. 


see  post,    Division  III.,    Water   and 
Watercourses. 


1977 


DANGEROUS   AGENCIES. 


1143 


their  (ating  the  poisonous  leaves.*  But  new  inventions 
in  machinery  are  not  prohibited  from  being  shown  in 
proper  places,  in  proper  condition,  and  at  proper  times, 
because  either  men  or  animals  may  become  frightened  at 
the  unusual  sight.'' 

One  who  ships  dangerous  goods  by  a  carrier  without 
informing  him  of  their  nature  is  liable  in  damages  for 
any  injury  which  they  may  cause.*  The  shipper  knowing 
the  dangerous  character  of  the  goods  is  bound  to  notify 
the  carrier;  but  if  he  is  ignorant  of  their  dangerous 
character,  and  is  guilty  of  no  negligence,  he  will  not  be 
liable.*  The  carrier  to  whom  dangerous  goods  are  de- 
livered without  notice  is  not  responsible  for  damages 
which  may  be  caused  by  them  while  in  his  hands  without 
negligence  on  his  part.  In  a  leading  case  in  the  United 
States  supreme  court,  express-carriers  received  and  trans- 
ported from  New  York  to  San  Francisco  a  package  of 
nitro-glycerine,  a  substance  then-  little  known,  in  igno- 
rance of  the  name  and  character  of  its  contents,  and 
without  negligence.  The  package  having  leaked  on  the 
voyage,  when  it  was  received  at  the  carriers'  warehouse  in 
San  Francisco,  an  agent  and  a  servant  of  theirs,  together 
with  a  representative  of  the  steamship  company  which  had 
transported  it  for  them,  proceeded  in  the  usual  manner, 
and  in  ignorance  of  the  character  of  its  contents,  to  open 
it  for  the  purpose  of  ascertaining  the  cause  of  the  leakage. 
While  they  were  doing  this,  it  exploded,  killing  all  per- 
sons present,  destroying  the  building  in  which  it  was, 
and  greatly  damaging  other  buildings.  It  was  held  that 
the  carriers  were  not  liable  to  pay  damages  for  the  prop- 
erty thus  destroyed,  except  as  to  that  occupied  by  them 


'  Crowhurst  v.  Amersham  Burial 
Board,  4  L.  R.  4  Ex.  Div.  5. 

^  Huutoon  V.  Trumbull,  2  McCrary, 
314. 

^  Wellington  v.  Downer  Kerosene 
Oil  Co.,  104  Mass.  G7;  Barney  v.  Burus- 


stenbinder,  7  Lans.  210;  64  Barb.  212; 
Farrant  v.  Barnes,  1 1  Com,  B. ,  N.  S. , 
553;  Boston  etc.  R.  R.  Co.  v.  Shauly, 
107  Mass.  5G8. 

♦Brass    v.   Maitland,   G  El.    &    B. 
470. 


§  1143 


NEGLIGENCE. 


1078 


as  tenants  uiuler  a  lease,  as  to  which  they  admitted  a  liu. 
bility  as  for  a  waste.* 

Illustrations.  —  The  owner  of  a  farm  leased  small  parcels 
in  the  middle  of  it  to  laboring  men.  A  farm  road  approaclicil 
the  holdings,  but  did  not  reach  them.  Toward  the  loaspil 
parcels  from  the  end  of  the  road  the  lessor  stored  a  box  of 
dynamite,  with  cartridge-exploders,  under  a  low  shed  niiule 
against  a  stump,  and  only  partially  inclosed,  and  in  a  rough- 
bound  box  not  always  kept  covered,  and  never  securely  fastened. 
A  child  of  one  of  the  lessees  who  had  been  at  work  in  the  HeM 
went  into  the  shed,  broke  one  of  the  cartridges  from  the  box,  ami 
striking  it  with  a  stone,  exploded  it,  and  was  injured.  Neither  he 
nor  his  father  knew  what  was  kept  in  the  shed,  or  knew  of  any 
danger  there,  or  of  any  reason  for  keeping  away  from  it;  and 
there  was  no  warning  on  or  about  the  shed,  except  the  word 
"powder"  written  on  the  box,  which  neither  of  them,  if  they  had 
seen  it,  could  have  read.  l/cW,that  the  lessor  was  responsilde: 
Poivers  v.  Harloiv,  53  Mich.  507;  51  Am.  Rep.  154.  For  the 
purposes  of  fumigation  under  the  direction  of  the  health- 
oflicer,  the  steward  of  a  vessel  (as  was  his  duty)  cleared  the 
passengers  from  the  steerage.  He  furnished  the  health-oflicers 
with  the  drinking-cups  of  the  passengers  in  which  to  put  the 
fumigating  compound,  a  poisonous  substance.  After  the  fumi- 
gation, he  ordered  the  passengers  back  to  the  steerage  witliout 
having  removed  the  drinking  utensils,  or  seeing  that  iaey  were 
thoroughly  cleaned,  although  he  knew  the  character  of  the 
fumigating  substance.  A  mother  (a  passenger)  allowed  one  of 
her  children,  of  five  years  of  age,  to  play  about  the  steerage,  in 
her  presence.  She  did  not  know  that  any  deleterious  substance 
was  contained  in  the  drinking-cups.  The  child  drank  of  the 
mixture  in  one  of  them,  and  died  from  the  effects  of  the  poison, 
HeU,l.  That  the  steward  was  guilty  of  negligence;  2.  That  the 
mother  was  not  guilty  of  contributory  negligence,  although  i^he 
had  seen  the  child  take  the  cup  to  drink  out  of  it:  Ri/aU  v. 
Kennedy,  40  N.  Y.  Sup.  Ct.  347.  A,  traveling  without  right  along 
a  railroad  track,  picked  up  a  torpedo  which  had  been  placed 
there  as  a  danger  signal.  While  handling  the  torpedo,  it  ex- 
ploded and  killed  him.  Held,  that  the  company  was  not 
responsible:  Carter  v.  R.  R.  Co.,  19  S.  C.  20;  45  Am.  Rep.  7.')4. 
A  laborer  in  trespassing  upon  A's  premises  found  three  jars  of 
water,  and  one  jar  full  of  a  colorless  liquid  poison,  resemlding 
water,  but  labeled  "poison,"  and  by  mistake  drank  of  the 
poison,  and  died.    Held,  that  A  was   not  liable:  Callahan  v. 


'  The  Nitro-glycerine  Case,  Parrott    Baney,  1  Saw.  423.     And,  see  Pierce 
t>.  Wella,   15  Wall.  524;  Parrott  v.    v.  Winsor,  3  Cliff.  18;  2  Sprague,  35. 


1979 


DANGEROUS   AGENCIES. 


§  1144 


Warne,  40  Mo.  131.  A  contractor,  for  blasting,  ordered  one 
manufacturer  to  send  him  a  quantity  of  dualin,  and  another  to 
send  him  certain  exploders.  Each  manufacturer,  without  the 
other's  knowledge,  delivered  the  respective  articles  to  a  carrier 
wlio  was  ignorant  of  the  danger  of  combining  the  two  sub- 
stances, which,  while  being  transported  with  due  care,  exploded, 
injuring  the  property  of  the  carrier,  and  the  goods  of  a  third 
party.  It  was  impossible  to  distinguish  what  proportion  of  tlie 
explosion  was  caused  by  either  substance.  Held,  that  the  two 
manufacturers,  but  not  the  contractor,  were  jointly  liable  to 
the  carrier  and  to  the  third  party:  Boston  and  Albany  R.  R.  Co. 
V.  Sluinly,  107  Mass.  568.  The  defendant  delivered  to  the  ser- 
vant of  a  railroad  a  carboy  of  nitric  acid,  to  be  transported  to 
a  distant  place,  without  communicating  to  him  its  dangerous 
nature,  which  there  was  nothing  in  its  appearance  to  indicate. 
Whilst  it  was  being  carried  by  the  servant,  the  carboy,  from 
Bonie  unexplained  cause,  burst,  and  its  contents  flowed  over  and 
Beveroly  injured  him.  Held,  that  the  defendant  was  liable  for 
the  injury:  Farrant  v.  Barnes,  11  Com.  B.,  N.  S.,  553.  The  em- 
ployees of  a  railroad  placed  some  signal-torpedoes  on  the  track 
near  a  depot  and  at  a  place  used  as  a  crossing.  They  intended 
to  explode  them,  but  went  away  without  doing  so.  Imme- 
diately after  the  train  had  moved  on,  a  boy  of  nine  years,  who, 
with  the  knowledge  of  the  railroad  employees,  was  coming  on 
the  track  immediately  behind  the  train,  discovered  the  torpedo, 
picked  it  up,  and  exhibited  it  to  the  plaintiff,  a  boy  ten  years 
old,  and  several  other  boys  of  about  the  same  age,  all  of  whom 
were  ignorant  of  its  dangerous  or  explosive  character.  While 
it  was  being  so  exhibited  near  where  found,  it  exploded,  with- 
out plaintiff's  fault,  with  such  force  that  it  killed  one  boy, 
destroyed  an  eye  of  each  of  two  others,  and  tore  off  plaintiff's 
left  hand  and  arm,  and  otherwise  injured  him.  Held,  that  the 
railroad  was  liable  for  the  injury:  Harriman  v.  R.  R.  Co.,  45 
Ohio  St.  11. 

§  1144.  Vending,  Letting,  Lending,  Dangerous  Arti- 
cles.—  If  one  sells  or  delivers  an  article  which  he  knows 
to  be  dangerous  or  noxious  to  another  person,  without 
notice  of  its  nature  or  qualities,  he  will  be  liable  for  any 
injury  which  may  reasonably  be  contemplated  as  likely  to 
result,  and  does  result,  to  the  person  receiving  it  or  a  third 
person.'  In  a  Massachusetts  case  the  declaration  alleged 
that  the  defendants,  knowing  one  J.  S.  to  be  a  retailer  of 
<  WeUiugtoQ  V,  Downer  etc.  Oil  Co.,  104  Mass.  64. 


§  1144 


NEGLIGENCE. 


1980 


fluids  to  be  burned  in  lamps  for  illuminating  purposes, 
and  knowing  naphtha  to  be  explosive  and  dangerous  to 
life  for  such  a  use,  sold  and  delivered  naphtha  to  him, 
knowing  that  it  was  his  intention  to  retail  it  in  his  busi- 
ness; that,  in  ignorance  of  its  dangerous  properties,  J.  8. 
retailed  a  pint  of  it  to  the  plaintiff^,  to  be  burned  in  his 
lamp  for  illumination;  and  that  while  the  plaintiff,  in  like 
ignorance,  was  so  burning  it,  it  exploded  and  injured  him 
and  his  property.  It  was  held  that  this  disclosed  a  good 
cause  of  action.  "  The  defendants,"  said  the  court, 
"  were  guilty  of  a  violation  of  duty  in  selling  an  article 
which  they  knew  to  be  explosive  and  dangerous  for  the 
purpose  of  being  resold  in  the  market  without  giving 
information  of  its  nature,  and  were  therefore  bound  to 
contemplate  as  a  natural  and  probable  consequence  of 
their  unlawful  act  that  it  might  explode  or  ignite,  and 
injure  an  innocent  purchaser  or  his  property,  and  to 
answer  in  damages  for  such  a  consequence,  if  it  should 
come  to  pass."  ^  A  person  selling  gunpowder  to  an  infant 
is  liable  for  the  damage  which  the  infant  may  cause  by 
it,  even  to  itself.''  But  a  vendor  of  an  article  of  his  own 
manufacture  not  in  itself  dangerous  is  not  liable  for 
injuries  caused  by  a  defect  in  it  received  by  one  who  uses 
it  with  the  consent  of  the  purchaser;  as,  for  example,  the 
seller  of  a  steam-boiler,^  or  an  emery-wheel.*  In  England, 
it  has  been  held  that  where  a  father  purchased  a  gun  to 
be  used  by  himself  and  his  sons,  which  the  vendor  war- 
ranted  to  be  good  and  safe,  and  while  in  use  by  one  of  liis 
sons  it  exploded  in  consequence  of  being  defectively  con- 
structed, and  the  son  was  thereby  injured,  the  latter  was 
entitled  to  recover  damages  of  the  vendor.*     So  where  a 


'  Wellington  v.  Oil  Co.,  104  Mass.  64. 

•^  Carter  v.  Towne,  98  Mass.  507;  90 
Am.  Dec.  682.  In  slavery  times,  one 
selling  liquor  to  a  slave,  from  drinking 
•which  he  dies,  was  held  liable  to  the 
master  for  his  value:  Harrisons.  Berke- 
ley, 1  Strob.  525;  47  Am.  Dec.  578. 


» Loose  V.  Clute,  51  N.  Y.  494. 

*  Loop  V.  Litchfield,  42  N.  Y.  351; 
1  Am.  Rep.  543. 

"  Langridge  v.  Levy,  2  Mees.  &  W. 
519;  4  Mees.  &  W.  .337.  And  see  Loag- 
meid  v.  HoUiday,  6  Ex.  701. 


1981 


DANGEROUS   AGENCIES. 


8  1144 


person  purchased  of  a  chemist  a  bottle  of  hair-wasli,  to 
be  used  by  his  wife  in  dressing  her  hair,  and  she  use<i 
it  and  thereby  received  injuries  in  consequence  of 
its  having  been  compounded  of  deleterious  substances, 
the  court  of  exchequer  held  that  the  purchaser  and  his 
wife  were  entitled  to  recover  damages.'  A  woolen  manu- 
facturer who  uses  a  dye  which  has  never  caused  an  injury, 
and  which  he  has  no  reason  to  suppose  will  do  so,  is  not 
Hable  to  a  purchaser  poisoned  by  handling  the  cloth.'^ 

Illustrations.  —  A  had  contracted  with  the  postmaster- 
general  to  provide  a  mail-coach  to  convey  the  mail-bags  along 
a  certain  line  of  road;  B  and  others  had  agreed  to  horse  the 
coach  along  the  same  line,  and  B  and  his  co-contractors  hired 
C  to  drive  the  coach.  While  C  was  driving  the  coach  it  broke 
down  from  latent  defects  in  its  construction,  and  C  was  injured. 
Held,  that  C  could  not  recover  damages  of  A,  because  there 
was  no  privity  of  contract  between  them :  Winterhottom  v.  Wright, 
10  Mees.  &  W.  109.  A  railway  company  furnished  a  crane,  to 
be  used  by  customers  in  unloading  freight  which  they  were 
bound  to  unload  at  their  own  expense.  Owing  to  a  defect  in 
the  crane,  of  which  the  company  had  knowledge,  a  person 
called  in  temporarily  to  assist  a  consignee  in  unloading  freight 
was  killed.  Held,  that  his  personal  representative  could  not 
recover  damages  of  the  company:  Blakeviore  v.  R.  R.  Co.,  8  El. 
&  B.  1035.  A  employed  B  and  C  to  repair  a  ship,  and  hired 
the  defendants'  dry-dock  for  the  purpose  of  making  such 
repairs.  B  and  C  erected  a  scaffolding  upon  standards 
attached  to  the  dock,  which  belonged  to  the  defendants,  and 
which,  by  the  rules  of  the  defendants,  they  were  required  to 
use  for  that  purpose.  Owing  to  the  insufficiency  of  these  stan- 
dards, the  scaffolding  gave  way,  whereby  D,  a  workman  em- 
ployed by  B  and  C,  in  making  such  repairs,  was  injured. 
Held,  that  D  could  recover  in  an  action  against  the  owners  of 
the  dry-dock  for  this  injury:  Cook  v.  New  ^ork  Floating  Dock 
Co.,  1  Hilt.  436;  18  N.  Y.  229.  The  defendant  manufactured  a 
steam-boiler  and  sold  it.     While  it  was  in  the  possession  and 


'  (reorge?;.  Skiviagton,  L.R.  5  Ex.  1, 
court  saying:  "Quite  apart  from  any 
•lULstioii  of  warranty,  expreaa  or  im- 
plicil,  there  was  a  duty  on  the  defend- 
ant, tlie  vendor,  to  use  ordinary  care 
in  compounding  this  wash  for  the 
luiir.  Unquestionably  there  was  such 
a  duty  towards  the  purchaser,  and  it 


extends,  in  my  judgment,  to  the  per- 
son for  whose  use  the  vendor  knew  the 
compound  was  purchased."  And  see 
further,  on  this  subject,  ante,  Title 
Principal  and  Agent  —  Druggists. 

2  Gould  V.  Slater  Woolen  Co.,  147 
Mass.  315. 


§  1145 


NEGLIGENCE. 


1982 


control  of  the  purchaser,  it  exploded,  and  plaintiff,  a  third 
party,  was  injured.  Held,  that  A  was  not  liable  to  plain- 
i\i]\  even  if  the  construction  of  the  boiler  was  defect! V(!: 
Ln>i<'c  V.  Clutc,  51  N.  Y.  494;  10  Am.  Rep.  G38.  A  sold  hay 
upon  which  white  lead  paint  had  been  spilt;  but  which  he  had 
attempted  to  cleanse.  The  purchaser's  cow  ate  thereof  and 
died.  Held,  that  an  action  lay  against  A:  French  v.  Vin!i)(i, 
102  Mass.  132;  3  Am.  Rep.  440.  Plaintiff  charged  that  dl.-. 
fendant  had  sold  him  a  barrel  of  gasoline  instead  of  a  barnl 
of  puroline  ordered  by  him,  and  that  the  burning  of  his  mill 
had  resulted  from  the  substitution.  It  appeared  that  the 
one  was  about  as  dangerous  as  the  other,  and  that  the  barrel 
was  marked  "explosive  and  dangerous."  Held,  that  the  action 
could  not  be  maintained:  Socola  v.  Chess-Carley  Co.,  89  La.  Ann. 
344. 


§  1145.  Use  of  Fire-arms.  —  In  the  use  of  fire-arms,  a 
high  degree  of  care  is  required.  The  reasonable  care 
"wliich  persons  are  bound  to  take,  in  order  to  avoid  injury 
to  others,  is  proportionate  to  the  probability  of  injury  tliut 
muy  arise  to  others.  He  who  does  what  is  more  than 
ordinarily  dangerous  is  bound  to  use  more  than  ordinary 
care.  In  the  keeping  and  using  of  fire-arms,  so  great  care 
is  necessary  to  prevent  injury  to  others  that  an  action 
for  damages  caused  by  the  keeping  or  use  of  guns  and 
pistols  is  sustainable  on  proof  of  very  slight  negligence.' 
In  a  case  which  well  illustrates  this  principle  "  the  i)lain- 
tiif  rode  his  mare  to  the  town  of  Warrensburg  and  hitched 
her  near  to  a  store,  one  of  the  usual  places  for  hitching 
horses  in  that  town.     On  the  same  day,  the  defendant 


'  Underwood  v.  Hewson,  1  Strange, 
59f.:  Weaver  r.  Ward.  Hob.  134;  Cole 
V.  Fisher,  1 1  Mass.  1 37 ;  I  )altou  r.  Fa- 
vour, 3N.  H.  4Go;  Chataigne  v.  Ber- 
geron, 10  La.  Ann.  (i!)'.(;  Wright  v. 
Chuk,  50 Vt.  130;  28  Am.  Rep.  49G; 
Chiles  V.  Drake,  2  Mot.  (Ky.)  14(5; 
74  Am.  Dec.  400;  Welch  v.  Duran.l, 
30  Conn.  182;  4  Am.  Rep.  .55;  Conk- 
lin  r.  Thompson,  20Bar)>.  218;  Morgan 
V.  Cox,  22  Mo.  373;  G()  Am.  Dec.  023, 
the  eoiirt  saying:  "  '  If  a  gamekeeper; 
returning  home  from  his  duty,  were 
to    leave    his  loaded  guu  iu  a  play- 


groun<l,  and  one  of  the  boj's  slunilil 
tire  it  off  and  injure  another,  it  coiiUl 
not  he  doubted  but  that  tiie  gmiie- 
keeper  must  answer  in  damages  to  tlie 
injured  party.'  I  recollect  mystlf  a 
case  that  occurred,  where  a  person  in 
riding  through  the  streets  of  one  of 
our  villages  with  his  loaded  ritle  be- 
fore him,  lying  horizontally  across  \m 
saddle,  it  accidentally  fired  iiiul 
wounded  a  person  sitting  in  his  own 
door,  and  no  doubt  seemed  to  lie  en- 
tertained of  tiie  responsibility  of  tlie 
party  for  the  damage  that  resulted." 


19S3 


DANGEROUS   AGENCIES. 


§1145 


happened  to  go  to  town,  and  took  with  him  a  loaded  rifle- 
gun.  On  reacliing  town,  he  placed  his  gun  in  the  store 
near  to  which  the  plaintiff's  mare  was  hitched.  In  the 
evening,  when  about  to  leave  for  home,  he  got  his  gun, 
and  in  the  act  of  placing  it  upon  his  arm  or  shoulder, 
from  some  cause  not  explained  in  the  proof,  the  gun  fired, 
and  the  contents  passed  through  the  body  of  plaintiff's 
maro,  standing  at  the  post  where  she  had  been  hitched, 
and  killed  her.  The  defendant  had  been  drinking,  but 
vas  not  intoxicated.  The  proof  placed  it  beyond  reason- 
able doubt  that  the  discharge  of  the  gun  was  accidental, 
and  wholly  unintentional  on  the  part  of  the  defendant. 
Tlie  question  was,  upon  the  state  of  facts.  Was  the  defend- 
ant liable  for  the  injury  to  the  plaintiff?  The  court,  af- 
firming the  judgment  below,  held  that  the  defendant  was 
liable.'     Discharging  a  gun  on  or  near  a  highway  is  such 


'  Tally  V.  Ayres,  3  Snecd,  677.  The 
court  say:  "The  argument  for  the 
lilaiutilf  ill  error  resolves  itself  into 
thus:  that  in  carrying  his  gun  he  was 
in  tliu  exercise  of  a  lawful  right,  and 
tliat,  as  the  discharge  of  the  gun 
vliich  caused  the  injury  was  entirely 
accidental  and  without  the  concur- 
rence of  his  will,  he  cannot  be  held 
lialjlc  for  the  loss  to  the  plaintiff.  The 
arf;unieiit  is  not  tenable.  In  the  gen- 
eral class  of  cases  to  which  the  pres- 
ent helongs,  there  is  some  contrariety 
of  o^iinion  in  respect  to  the  appropri- 
ate fonu  of  action,  whether  trespass 
or  case,  the  criterion  being  whether 
the  injury  arose  directly  or  followed 
consc(jucntially  from  the  act  of  the 
i^ei' ■■  Umt.  No  such  question  is  pre- 
•'M  '  m  this  ease;  nor  can  any  such 
•  '  io  1  arise  in  a.iy  case,  in  the  pres- 
.  .,•  state  of  our  law,  the  distinction 
ii  v'.  iu  effect,  o.bolished  by  a  recent 
■^Msl.itive  enactment.  But  there  is 
no  coMllict  of  opinion  as  respects  the 
right  of  a  party,  in  a  civil  action,  to 
recover  damages  for  an  injury  to  his 
jiersoii  or  property,  caused  either 
directly  or  consequentially  by  the 
negliycace,  inadvertence,  or  want  of 
f roper  precaution  on  the  part  of  an- 
other, although  such  injury  may  have 


been  purely  accidental  and  uninten- 
tional. To  constitute  an  available 
defense  in  such  cases,  it  must  appear 
that  the  injury  was  unavoidaljle,  or 
the  result  of  some  superior  agency, 
without  the  imputation  of  any  degree 
of  fault  to  the  defendant.  The  law- 
fulness of  the  act  from  which  the  in- 
jury resulted  is  no  excuse  for  the 
negligence,  unskillfulness,  or  reckless 
incaution  of  the  party.  Every  one,  in 
the  exercise  of  a  lawful  right,  is  bound 
to  use  such  reasonable   vigilance   and 

Erecaution  as  that  no  injury  may 
e  done  to  others.  Nor  is  it  material, 
in  a  civil  action  for  the  recovery  of 
damages,  whether  the  injury  was  will- 
ful or  not.  It  is  no  ground  of  defense 
that  the  mind  or  will  did  not  concur 
in  the  act  by  which  an  injury  was  oc- 
casioned. The  cist  of  the  action  is 
not  the  lawfulness  of  the  action 
whence  the  injury  proceeded,  nor  the 
existence  of  an  evil  intention,  but 
is  the  fault  of  the  defendant  in  ne- 
glecting to  exercise  such  a  reasonable 
degree  of  skill,  or  diligence,  or  cau- 
tion, and  prudent  foresight,  as,  under 
the  circumstances,  might  have  avoided 
the  injury.  It  would  be  useless  to 
cite  authorities  in  support  of  these 
familiar  principles,  of  which  the  books 


gll45 


NEGLIGENCE. 


19S4 


negligence  ns  to  render  the  person  liable  for  an  injury 
caused  thereby,'  So  is  leaving  a  loaded  gun  in  a  place 
where  others  may  get  at  it.  In  an  English  case  the  plain- 
tiff and  defendant  both  lodged  a!  the  house  of  one  L., 
where  the  defendant  kept  a  gun  loaded  with  types,  in 
conse(iuence  of  several  robberies  having  been  comuiittod 
in  the  neighborhood.  The  defendant  left  the  house  and 
sent  a  girl,  his  servant,  of  the  age  of  about  thirteen  or 
fourteen,  for  the  gun,  desiring  L.  to  give  it  to  her,  and  to 
take  the  priming  out.  L.  accordingly  took  out  the  prim- 
ing,  told  the  girl  so,  and  delivered  the  gun  to  her.  She 
put  it  down  in  the  kitchen,  resting  on  the  butt,  and  soon 
afterwards  took  it  up  again,  and  presented  it,  in  play,  at 
the  plaintiff's  son,  a  child  between  eight  and  nine,  saying 
she  would  shoot  him,  and  drew  the  trigger.  The  gun  went 
off,  severely  wounding  the  child.  It  was  held  that  the 
defendant  was  responsible.''  Officers  of  the  militia  are 
answerable  in  damages  for  injuries  occasioned  by  the 
discharge  of  guns  near  or  on  the  highway  by  the  troops 
when  under  their  charge.'    In  a  leading  case  in  New 


aro  full,  nor  is  it  necessary  to  occupy 
time  in  applying  these  principles  to 
the  facta  of  the  case  under  considera- 
tion; their  application  is  sufficiently 
obvious.  The  mere  statement  of  the 
facts  necessarily  implies  negligence 
and  heedlessness  on  the  part  of  the  de- 
fendant. The  act  of  taking  a  loaded 
gun  into  a  place  of  public  resort, —  no 
necessity  or  cause  being  shown  for 
doing  so, —  and  leaving  it  exposed  in 
the  store,  was  an  uncalled  for  and 
reckless  act;  and  the  very  fact  that 
the  gun  'went  off,' under  the  circum- 
stances detailed  in  the  proof,  implies 
of  necessity  some  inadvertent  act  or 
want  of  proper  caution  on  the  part  of 
the  defentlant.  The  lock  must  either 
have  been  defective,  or  some  agency 
must  have  been  exerted,  unintention- 
ally and  perhaps  unconsciously,  by  the 
defendant,  otherwise  the  discharge  of 
the  gun  could  not  have  happened;  and 
in  either  view,  the  defendant  ia  alike 
amenable  for  the  couaequeuces." 


»  Colew.  Fisher,  11  Mass.  137. 

»  Dixon  V.  Bell,  5  Maule  &  S.  198, 
the  court  saying:  "The  defendant 
might  and  ought  to  have  gone  fartlier; 
it  was  incumbent  on  liim,  who,  Ijy 
charging  the  gun,  had  made  it  capa- 
ble of  doing  mischief,  to  render  it  safe 
and  innoxious.  This  might  have  been 
done  by  the  discharge  or  drawing  of 
the  contents;  and  thougli  it  was  the 
defendant's  intention  to  prevent  all 
mischief,  and  he  expected  that  thid 
would  be  eflfectuated  by  taking  out  the 
priming,  the  event  has,  unfortunately, 
proved  that  the  order  to  L.  was 
not  sufficient;  consequently,  as  l)y 
this  want  of  care  the  instrument 
was  left  in  a  state  capable  of  doing 
mischief,  the  law  will  hold  the  de- 
fendant responsible.  It  is  a  hard  case, 
undoubtedly,  but  I  think  the  action  is 
maintainable. " 

» Moody  V.  Ward,  13  Mass.  299; 
Cole  V.  Fisher,  11  Masa.  137. 


19S4 


19S5 


DANGEROUS   AGENCIES. 


§  1145 


ij^iry 


York,  at  a  parade  of  a  regiment  of  the  national  guard,  it 
Avas  the  custom  to  lire  with  blank  cartridges.  In  the  front 
row  of  the  spectators,  about  350  yards  from  the  lino,  a 
woman  was  sitting  with  a  child  in  her  lap.  At  the  third 
discharge,  a  ball  struck  her  and  her  child,  wounding 
hor  and  killing  the  child.  The  regiment  was  unde^  the 
immediate  command  of  its  colonel,  and  the  orders  to  fire 
were  given  by  liim  personally,  but  he  had  caused  to  be 
taken  all  the  precautions  usual  on  such  occasions  to  pre- 
vent the  possibility  of  any  piece  being  discharged  with  a 
ball-cartridge.  It  was  held  that  the  colonel  was  liable  iu 
damages.^  In  Massachusetts  it  has  been  ruled  that  a 
militia  colonel  who  has  dismissed  his  command  after  a 
parade  is  not  liable  in  damages  f  r  the  act  of  his  men  in- 
juriiig  a  person  on  the  highway  while  discharging  their 


'  Castle  V.  Duryea,  32  Barb.  480;  2 
Keyes,    109,  the  court  saying:   "No 
question  can  arise  but   that  the   as- 
seinblagu  of  the  men  for  drill  and  mili- 
tary exorcise  was  perfectly  legal;  nor 
but  tliiit  there  was  an   utter  absence 
of  any  intent  to  injure  the  plaintiff, 
or  any  other  human  being.      The  cir- 
cumstance that  one  of  the  guns  was 
loadeil  with  a  ball  was,  as  far  as  the 
Jefeuelant  was  concerned,    purely  ac- 
cidental.    In  a  moral   point  of  view, 
ami  upon  the  amount  of  damages  to  be 
recovcreil,  it  was  a  great  alleviation 
that  tlie  defendant  had  taken  all  the 
usual  precautions,  and  all  which  were 
ilcoiuuil  necessary  to   guard    against 
such  an  accident.     The  fact,  however, 
remains,  that  the  plaintiff  was  shot 
by  the  (lischarge  of  a  loaded  gun,  and 
tiiat  its  discharge  was  ordered  by  the 
defciubmt.     If  it  had  occurred  in  the 
discharge  of  any  publii^  duty  which 
Iwlouge  I  to  the  defendant   to  perform, 
and  which  he  had  no  other  means  of 
performing,  the  question  would  have 
arisen  which  the    judge   put  to   the 
jury,    whether    all    the    precautions 
hail  hwAi   taken  which   the  circum- 
stances of  the  case  required.     For  in- 
stance, if  the  defendant  and  his  regi- 
ment had  been   called  upon  by  the 
civil  autiiority  to  quell  a  riot,  and  an 
innocent  person  had  been  shot,  the 
125 


question  would  have  been  whether,, 
under  all  the  circumstances,  all  the 
precautions  to  prevent  injury  to  in- 
nocent _  third  persons  which  the  case 
admitted  of  had  been  taken.  But  the 
defendant  was  not  required  by  any 
piiblic  duty  to  cause  his  men  to  dis- 
charge their  fire-arms  at  all  while 
people  were  within  musket-range. 
The  manner  in  which  he  was  to  drill 
and  instruct  them  depended  essen- 
tially upon  his  judgment  and  dis- 
cretion. He  could  have  directed  the 
firing  to  take  place  in  the  ravine 
where  the  target  exercise  occurred, 
or  he  could  have  stationed  guards  to 
keep  off  spectators  at  limits  so  remote 
from  the  parade  that  no  injury  could 
possibly  ensue.  If  lie  could  have  been 
sure  that  only  blank  cartridges  would 
be  used,  he  might    safely  order  the 

firing  to  take  place  as  it  did It 

is  not  the  law  that  if  one  supposing  a 
musket  to  be  unloaded,  or  to  be 
charged  only  with  powder,  snaps  it 
at  another,  and  he  is  wounded,  he  is 
irresponsible  in  a  civil  action;  and  it 
is  of  no  consequence,  so  far  as  main- 
taining the  action  is  concerned,  that 
he  acted  upon  the  most  plausible  or 
the  most  reasonable  grounds,  and 
fully  believed  that  the  gun  was  not 
charged  with  anything  which  could 
injure  aoother." 


mm 


§1145 


NEGLIGENCE. 


1986 


pieces  there,  thongli  the  captain  of  the  company  might 
he.' 

luLrsTRATioNS.  —  A  after  washing  out  his  gun  went  to  the 
door  of  his  sliop  and  discharged  it  for  the  purpose  of  drying  it, 
the  shop  (loor  being  near  the  liighway.  The  plaintiff's  horse 
harnessed  *o  a  chaise  was  fastened  by  a  bridh?  to  a  funce 
across  the  J:if,hway.  The  noise  frightened  the  liorse,  wliich 
broke  its  bridle,  and  running  away  injured  the  chaise.  i/(VJ, 
that  A  was  liable  for  the  damage:  Cole  v.  Fisher,  11  Mass.  137. 
The  defendant  had  been  out  with  his  gun,  and  was  asked  by 
the  plaintiff  to  aid  him  and  his  servant  in  driving  an  unruly 
cow  across  the  river.  He  complied,  and  while  doing  ko. 
punched  the  cow  with  his  loaded  gun,  and  in  replacing  it 
across  his  horse,  the  hammer  struck  the  saddle  and  caused 
it  to  fire,  by  which  the  plaintiff's  servant  was  shot  and  killed. 
Held,  that  he  was  liable:  Morgan  v.  Cox,  22  Mo.  373;  60  Am.  Dec. 
623.^  The  defendant  sold  to  two  boys  of  ten  and  twelve  powder 
and  ball-cartridges  to  use  in  a  toy  pistol.  A  statute  prohibited 
the  sale  of  pistol-cartridges  to  minors.  The  boys  left  the  pistol, 
loaded  with  one  of  the  cartridges,  in  a  place  where  a  younger  boy 
six  years  old  picked  it  up  and  discharged  it,  thereby  killing  one 
of  the  boys  who  purchased  the  cartridges.  Held,  that  the  boy's 
father  might  maintain  an  action  against  the  defendant:  Bin- 
ford  V.  Johnston,  82  Ind.  426;  42  Am.  Rep.  608.  The  defendant, 
as  president  of  a  political  club,  ordered  a  display  of  fire-works 
in  a  public  street  in  front  of  a  building  where  a  meeting  of  the 
club  was  being  held.  He  paid  for  the  fire-works,  the  money  be- 
ing raised  by  individual  subscriptions.   The  fire-works  exploded 


1  Moody  V.  Ward,  13  Mass.  299. 

^  The  court  aaying:  "  Every  person, 
however,  Mho  is  performing  an  act  is 
bound  to  take  some  care  in  what  he  is 
doing.  He  cannot  exercise  his  own 
indisputable  rights  without  observing 
proper  precaution  not  to  cause  others 
more  damage  than  can  be  deemed  fair- 
ly incident  to  such  exercise.  Sic  utere 
tuo  lit  alknum  non  Uedas,  And  there- 
fore, although  the  mere  exercise  of  a 
right  is  not  a  wrong  in  any  case,  any 
negligence  in  the  exercise  of  it  that 
causes  a  loss  to  another  is  an  injury, 
conferring  upon  him  a  right  of  action. 
It  is  correctly  said  that,  generally, 
between  persons  standing  in  no  par- 
ticular relation  to  each  other,  that 
alone  is  reasonable  care  which,  in  the 
judgment  of  men  in  general,  is  pro- 
portionate to  the  probability  of  injury 
to  others;    and  consequently,  he  who 


does  what  is  more  than  ordinarily  dan- 
gerous is  bound  to  use  more  than  or- 
dinary care.  The  defendant  here  had 
a  dangerous  instrument  in  his  hands, 
and  it  was  his  duty  to  take  proportion- 
ate care  in  handling  it.  The  punching 
of  the  cow  was  a  careless  use  of  it, 
surrounded  as  he  was  by  others;  and 
although  the  accident  did  not  then 
occur,  it  was  no  doubt  occasioned  by 
accidentally  striking  the  hammer 
against  the  saddle,  upon  returning  the 
gun  to  the  horizontal  position  iu  which 
the  defendant  had  carried  it,  without 
elevating  the  muzzle.  The  accident, 
in  all  probability,  would  not  have  oc- 
curred had  the  defendant  takoi  that 
care  of  the  gun  that  it  was  ';'3  duty  to 
have  taken  of  it  while  it  was  loaded, 
and  he  himself  was  surrounded  b^ 
those  whom  it  might  injure  if  it  acci- 
dentally fired." 


1980 
miRht 

to  the 
ying  it, 
s  horse 
a  fence 
,  which 

IBS.  137. 

sked  hy 

unruly 

oing   KO, 


1087 


DANGEROUS   AGENCIES. 


§  1146 


niul  injured  the  plaintiff.  Held,  that  the  defendant  was  lial)le: 
Jntne  v.  Sutton,  43  N.  J.  L.  257;  31)  Am.  Rep.  578;  and  see 
fifik  V.  Wait,  104  Mass.  74.  A  person  was  sitting  on  a  fence, 
holding  a  cocked  and  loaded  gun  in  his  lap.  It  was  discharged 
through  his  pointing  it  or  the  turning  of  the  rail,  and  wounded 
his  companion.  Held,  that  the  question  of  his  negligence  was 
for  the  jury:  Moebua  v.  Becker,  4G  N.  J.  L.  41 

§  1146.  Explosion  of  Steam-boilers.  —  The  owner  or 
proprietor  of  a  steam-boiler  is  liable  for  injurvjs  caused 
by  its  exploding  only  where  he  has  been  guilt';  of  some 
negligence.  If  the  boiler  has  in  it  no  defect  known  to 
him,  or  which  is  discoverable  by  the  application  of  known 
tests,  and  it  is  operated  with  care  and  skill,  he  is  not  an- 
swerable to  a  person  injured,  or  to  an  adjacent  proprietor, 
for  damages  caused  by  its  explosion.'  In  an  action  for 
injuries  caused  by  the  explosion  of  a  steam-boiler,  the 
fact  that  it  was  purchased  of  a  reputable  manufacturer  is 
relevant.''  The  fact  of  the  explosion  raises  a  presumption 
of  negligence  sufficient  to  cast  the"  burden  on  the  defend- 
ant to  prove  that  there  was  no  negligence.* 

Illustrations. —  S.,  the  owner  of  a  boiler,  entered  into  a 
partnership  with  Y.  and  T.  for  the  operation  of  a  grist-mill  on 
certain  days,  S.  having  the  right  on  other  days  to  run  his  own 
gaw-mill  with  the  boiler.  Y.  and  T.  became  under  the  arrange- 
ment owners  of  one  undivided  fourth  part  each  of  the  boiler, 
which  then  was  in  good  condition.  Afterwards,  while  running 
S.'s  saw-mill,  the  boiler  exploded.  Held,  in  the  suit  of  one 
injured  by  the  explosion,  that  Y.  and  T.  could  not  be  made 
hahle:  Young  v.  Bransford,  12  Lea,  232.  A  was  passing  through 
a  street  just  as  a  new  boiler  was  about  being  tested.  He  was  told 
to  leave,  and  that  it  was  not  safe  for  him  to  stop.  He  did  not 
leave,  however.   The  boiler  was  recklessly  tested,  and  exploded. 


'  Losee  v.  Buchanan,  51  N.  Y.  476; 
42  IfuNv.  Pr.  385;  10  Am.  Rep.  623; 
Speucer  r.  Campbell,  9  Watts  &  S.  32; 
Mai-..lu.ll  V.  Welwood,  38  N.  J.  L.  339; 
20  Am.  Rep.  394;  Witte  v.  Hague,  2 
Dowl.  &  11.  33. 

■  Lnseo  r.  Buchanan,  51  N.  Y.  476; 
42  H,iw.  Pr.  385;  10  Am.  Rep.  623. 

'  Fay  0.  Davidson,  13  Minn.  523. 
Proof  tliafc  the  servants  of  a  cotton- 
press  company  suddenly  let  off  all  the 


steam  and  hot  water  in  an  engine  into  a 
plank  ttumeextending  to  within  six  feet 
of  a  plank  bridge  nearly  two  hundred 
feet  distant,  whereby  B,  crossing  the 
bridge,  was  blinded,  precipitated  into 
the  gutter  below,  and  scalded  to  death, 
held  not  to  establish  gross  negligence 
on  the  part  of  the  company  entitling 
her  to  any  exemplary  damages:  South- 
ern Cotton  Press  etc.  Co.  v.  Bradley, 
62  Tex.  587. 


§  1117 


NEGLiaKNCE. 


inss 


injuring  A.  Ilrhl,  contributory  negligence:  Ochscnhein  v.  *S7ia». 
hy,  «o  N.  V.  214. 


I 


g  1147.  BlMting  Rocks.  —  Persons  blasting  rocks  and 
not  taking  proper  precautions  to  prevent  injury  to  others 
are  liahlc  thoreior.'  Negligence  may  arise  from  the  Ma-t 
not  being  pr()f)orly  set,  covered,  or  Hred,'^  or  from  the  liiil- 
ure  to  warn  passers-by.'  The  fact  of  the  injury  has  been 
held  to  raise  a  presumption  of  negligence,  i.  o.,  that  the 
blast  was  not  properly  covered  or  fired.'*  So  also  has  (he 
fact  that  tlie  precautions  required  by  a  city  ordinance  luul 
not  been  taken.*  Where  the  resulting  injury  is  to  the  free- 
hold or  possession  of  another,  the  question  of  negligonco 
does  not  arise.  A  man  has  a  right  to  immunity  from  such 
invasions  of  bis  right  of  property  or  possession,  irrespec- 
tive of  the  question  whether  the  person  making  such  in- 
vasion was  in  the  exorcise  of  ordinary  care  or  not.®  Where 
a  house  is  injured  from  blasting,the  action  may  be  brought 
either  by  the  owner  or  the  tenant, —  the  former  for  tlie 
injury  to  his  property,  the  latter  for  the  injury  to  his 
possession.^  But  the  owner  is  not  liable  for  the  act  of  an 
independent  contractor.^  In  some  states  it  is  held  Unit 
injuries  to  adjacent  houses,  and  other  real  property, 
caused  by  a  railway  company  in  blasting  rocks  in  the 
necessary  work  of  constructing  its  road,  authorized  by  its 


'  1  Tliompson  on  Negligence,  113. 
In  an  fiction  for  an  injury  sustained  by 
a  parser  on  a  highway  on  the  lands  of 
the  A  mining  company  hy  l)eing  struck 
by  a  stone  from  a  blast  tired  by  the  B 
mining  company,  eviilenco  of  an  agree- 
ment between  tlie  companies  that  each 
may  throw  rocka  on  the  other's  adja- 
cent premises  in  blasting  is  incompe- 
tent: Beauehamp  v.  Mining  Co.,  50 
Mich.  103;  45  Am.  Rep.  30. 

•^  Ulrich  V.  McCabe,  1  Hilt.  251. 
Defendant  cannot  answer  tiiat  the 
profits  of  the  business  do  not  warrant 
the  expense  of  such  precautions.  Tiie 
question  of  necessity  therefor  is 
for  the  jury:  Beauehamp  v.  Mining 
Co.,  50  Mich.  1G3;  45  Am.  Rep.  30. 


*  Driscoll  ?'.  Newark  etc.  Co.,  37  N. 
Y.  6.37;  97  Am.  Dec.  701. 

*  Ulrich  V.  xMcCabe,  1  Hilt.  251. 

*  Devlin  v.  Gallagher,  6  Daly, 
494. 

«Hayr.  Cohoes  Co.,  2  N.  Y.  150; 
3  Barb.  42;  51  Am.  Dec.  279;  Treinaiu 
V.  Cohoes  Co.,  2  N.  Y.  103;  51  Am, 
Dec.  284;  Scott  v.  Bay,  3  Mo.  4:^1; 
Gourdier  v,  Cormack,  2  E.  D.  Sniitii, 
200. 

'Gourdier  v.  Cormack,  2  E.  D. 
Smith,  200;  Hardrop  v.  Gallagher,  2 
E.  1).  Smith,  523. 

«  Pack  V.  New  York,  8  N.  Y.  222; 
McCaflferty  v.  R.  R.  Co.,  61  N.Y.  178; 
19  Am.  Rep.  267. 


10S9 


D.VNQEROUS   AGENCIES. 


§  1147 


cluiilor,  aro  not  wrongful  acts  for  which  an  action  will 
lie;  l)ut  tho  damages  thereby  occasioned  are  to  bo  assessed 
l)v  ( oiiunissioners,  under  tho  statute  providing  for  tho  as- 
bi'Sriinont  of  daiuugts  caused  by  the  taking  and  damaging 
of  |)i()[)orty  in  the  making  and  maintaining  of  such  roads.* 
r,ul  til  is  does  not  include  those  damages  which  aro  not 
ii(!ci'Sriiu'ily  incident  to  tlio  doing  of  tho  act  thus  author- 
ized iiiid  made  lawful.  Thus  if  such  a  company,  in  so 
blasting  rocks,  scatters  loose  stones  upon  tho  land  of  an 
adjacent  proprietor,  it  will  bo  liable.''  That  tho  defendant 
tiuiteiintended  tho  blasting,  and  gave  orders  conc;erning 
it,  i-  sufficient,  prima  facie,  to  sustain  a  judgment  for  dam- 
iv^va  against  him,  without  proof  respecting  the  contract  or 
cai»a(ity  in  which  he  acted.''  A  written  notice  given  by  the 
owner  of  an  adjacent  lot  to  the  plaintiff  of  an  intention  to 
l)last  rock  thereon  is  inima  facie  evidence  to  charge  the 
gender  of  such  notice  with  liability  for  an  injury  to  the 
jjlaintiff's  possession  subsequently  caused  by  rocks  being 
blasted  thereon,  so  as  to  cast  upon  him  the  burden  of  show- 
ing Unit  the  mischief  was  the  work  of  others  for  whom 
he  was  not  responsible.* 

Illi'strations.  —  Defendant  entered  into  a  contract  with  the 
state  of  New  York  to  enlarge  a  public  canal.  In  carrying  out 
the  contract  he  used  gunpowder  in  blasting  rock  and  hard 
earth,  and  missiles  were  hurled  against  plaintiff,  who  was  at 
work  on  premises  near  the  canal,  injuring  him.  Held,  1.  That 
difendant  had  no  such  delegation  of  sovereign  power  from  the 
state  as  to  allow  him  to  produce  direct  injuries  to  third  parties, 
although  the  blasting  might  have  been  a  necessary  act;  2.  Tliat, 
wluther  defendant  was  negligent  or  not,  he  was  liable  for  the 
injury  to  plaintiff;  3.  That  defendant  was  bound  either  to 
aJopt  such  precautions  as  would  prevent  such  missiles  from 
reaching  the  place  where  plaintiff  was,  or  to  give  him  personal 
and  timely  notice  of  the  blast;  4.  That  defendant  could  not  be 
regarded  as  the  agent  of  the  state,  he  being  a  mere  contractor 


'  Dodge  V.  County  Comm'rs,  3  Met. 
3S();  Whitehouse  v.  R.  R.  Co.,  52  Mo. 
208;  Saljiu  v.  R.  R.  Co.,  25  Vt.  363. 

-  Whitehouse  v.  R.  R.  Co.,  52  Me. 

208. 


'  Hardrop  v.  Gallagher,  2  E.  D. 
Smith,  523. 

'Gourdier  v.  Cormack,  2  E.  D. 
Smith,  200. 


§1148 


NEGLIGENCE. 


1990 


to  do  the  work  in  a  lawful  manner:  St.  Peter  v.  Denison,  58  N. 
Y.  416;  17  Am.  Rep.  258. 

§1148.    Contagious  Diseases — Unwholesome  Food.— 

A  landlord  who  lets  premises  knowing  that  they  are  in- 
fested with  a  contagious  disease,  or  in  a  condition  likely 
to  cause  a  disease,  without  notifying  the  lessee,  is  liable 
to  the  latter,  in  case  the  disease  is  communicated  to  him, 
for  the  damages  thereby  sustained.^  In  a  New  York  case 
a  physician  attended  a  woman  who  died  of  small-pox,  and 
subsequently  employed  the  plaintiff  to  whitewash  the 
house  in  which  the  death  occurred.  The  plaintiff,  who 
knew  the  woman  had  died  of  the  small-pox,  entered  and 
whitewashed  the  house,  relying  upon  the  assurances  of 
the  defendant  that  the  house  had  been  thorougly  dis- 
infected,  and  that  he  would  be  entirely  safe  in  so  doing; 
but  plaintiff  having  contracted  the  disease  in  the  house, 
he  subsequently  brought  an  action  to  recover  the  dam- 
ages  sustained  thereby.  The  court  held  that  the  relation 
between  the  parties  was  that  of  master  and  servant;  and 
that  the  plaintiff  was  entitled  to  recover  in  case  the  jury 
should  find,  on  all  the  facts,  that  the  plaintiff  did  not  act 
rashly  and  inexcusably  in  entering  the  house  under  the 
employment,  and  that  the  defendant  had  not  warned  him 
of  the  danger.'^  While  the  authorities  of  a  city  may  re- 
move from  the  city  persons  infected  with  small-pox,  yet 
they  are  liable  for  negligence  in  doing  so,  and  for  remov- 
ing them  in  stormy  weather  and  putting  them  in  an  un- 
safe and  unprotected  tent,  whereby  they  are  so  exposed 
that  death  ensues.''  One  who  holds  himself  out  to  the 
public  as  a  caterer  is  liable  to  the  parties  who  partake 
what  he  has  provided  for   them,   in  case   such  parties 

1  Cesar  v.  Rarutz,  60  N.  Y.  229;  19  eased:  Pfeflferle  v.  Lyon  Co.,  39  Kan. 

Am.  Rep.  164;  Cutter  v.  Hamlen,  147  432. 

Mass.  471.     A  county  is  not  liable  to  '■'  Span  v.  Ely,  8  Hun,  256. 

tke  inmates  of  its  jail  for  permitting  *  Aaron  v.  Broiles,  64  Tex.  31 G;  53 

it  to  remain    in  a  condition  which  Am.  Kep.  764, 
causes  them  to  become  aick  and  dis- 


1991 


DANGEROUS   AGENCIES. 


§1148 


thereby  suffer  from  eafing  unwholesome  food,  as,  for  in- 
stance, one  who  buys  a  ticket  for  a  supper  at  a  public 

ball/ 

Illustrations.- Defendant  took  his  children  when  thev 
had  whooping-coufen  a  contagious  disease,  to  the  boarding- 
house  of  plaintiff  to  board.  Her  child,  and  the  children  of  the 
other  boarders,  contracted  the  disease,  whereby  she  was  put  to 
expense  care,  and  labor  in  consequence  of  her  child's  sickness 
and  sustained  pecuniary  loss  by  reason  of  boarders  being  kept 

iT'  .ff!'^\*\^tfefeildant  was  liable  for  damages:  Smithy. 
HdkcT^  ly  v^ent.  Li.  J.  173. 


'Bisliop  V.  Weber,  139  Mass.  411; 
52  Am.  Kep.  7 J 5,  Allen,  J.,  saying: 
"If  one  who  holds  himself  out  to  the 
public  as  a  caterer,  skilled  in  provid- 
ing and  preparing  food  for  entertain- 
ments, is  employed  as  such  by  those 
who  arrange  for  an  entertainment  to 
furnish  food  and  drink  for  all  who 
may  attend  it,  and  if  he  undertakes 
to  perforin  the  service  '  accordingly,  hf, 
stands  in  such  a  relation  of  duty  tow- 
ards a  person  who  lawfully  attends 
the  t.-tertainment  and  partakes  of  the 
food  furnished  by  him  as  to  be  liable 
to  an  action  of  tort  for  negligence  in 
furnishing  unwholesome  food  whereby 
such  person  is  injured.  The  liability 
does  not  rest  so  much  upon  an  implied 
contract  as  upon  a  violation  or  ne- 
glected duty  voluntarily  assumed.  In- 


dexed, where  the  guests  are  entertained 
without  pay,  it  would  be  hard  to  es- 
tablish an  implied  contract  with  each 
individual.   The  duty,  however,  arises 
irom  the  relation  of  the  caterer  to  the 
guests.     The  latter  have  the  right  to 
assume  that  he  will  furnish  for  their 
consumption  provisions  which  are  not 
unwholesome  and   injurious  through 
any  neglect  on  his  part.    The  furnish- 
ing  of  provisions  which  endanger  hu- 
man life  or  health  stands  clearly  upon 
the  same  ground  as  the  administering 
of  improper  medicines,  from  which  a 
liability  springs   irrespective   of  any 
question  of  privity  of  contract  between 
the    parties:    Norton  v.   Sewall,    106 
Mass.  144;  8  Am.  Rep.  298;  Longmeid 
V.    HoUiday,    6    Ex.    761;     Pipin   v. 
Shepard,  11  Price,  400." 


§1149 


NEGLIGENCE. 


1902 


CHAPTER  LIX. 


INJURIES  ON  REAL  PROPERTY. 

§  1149,  Owners  of  premises  — No  duty  towards  trespassera  or  sight-seers. 

§  1150.  Spring-guns,  and  defense  of  property. 

§  1151.  Persons  invited  expressly  or  impliedly. 

§  1152.  Proprietors  of  places  of  public  resort. 

§  1 153.  Railroad  stations  — Vessels  — Wharves  —  Toll-bridges. 

§  1154.  Injuries  to  third  persons  from  defective  condition  of  leased  property 

—  When  lessor  and  when  lessee  liable. 

§  1155.  Who  arc  occupiers — When  landlord  liable. 

§  1156.  Liability  of  landlord  to  tenant. 

§  1157.  Excavations  and  obstructions  on  one's  land  near  highway. 

§  1158.  On  public  streets. 

§  1159.  Areas  under  sidewalks. 

§  1160.  Objects  falling  upon  travelers. 

§  1161.  Snow  and  ice  on  roofs  —  On  sidewalks. 

§  1162.  Telegraph  wires  in  streets. 

§  1163.  Objects  frightening  horses. 

§  1164.  Permissible  obstruction  in  streets  —  Building  materials. 

§  1149.  Owners  of  Premises — No  Duty  towards  Tres- 
passers or  Mere  Sight-seers.  —  The  owner  of  private 
grounds  or  buildings  is  not  obliged  to  keep  them  safe, 
so  that  no  injury  shall  result  to  trespassers  or  those 
who  go  where  they  are  not  invited,  but  merely  from 
curiosity  or  motives  of  private  convenience  in  no  way 
connected  witli  either  business,  social,  or  other  relations 
with  the  occupant.*  A  land-owner  who  maintains  upon 
his  premises  a  machine  not  intrinsically  dangerous  is  not 
liable  in  damages  to  one  who,  without  invitation,  comes 
upon  the  land  hoping  to  obtain  employment,  and  while 
there  is  injured  through  the  breaking  of  the  machine 


'  Hargreaves  ?>.  Deacon,  25  Mich.  1; 
Kohn  V.  Lovett,  44  Ga.  251 ;  Gautret  v. 
Egerton,  L.  R.  2  Com.  P.  371;  Houn- 
sell  V.  Smith,  7  Coin.  B.,  N.  S.,  731; 
Bolclir.  Smith,  7  Hurl.  &  N.  7.36;  Zce- 
bibch  r.  Tarl)ell,  10  Allen,  385;  87  Am. 
Dec.  660;  Frost  v.  R.  R.  Co.,  10  Al- 
len, 387;  87  Am.  Dec.  668;  Parker  v. 


Portland  Pub.  Co., 69  Mo.  173;  31  Am. 
Rep.  262;  Evansville  etc.  R.  R.  (V,.  v. 
Griffin,  100  Ind.  221;  50  Am.  U;p. 
783;  Larmore  V.  Iron  Co.,  101  N.  Y. 
391;  54  Am.  Rep.  718;  Galventoii  Oil 
Co.  V.  Morton,  70  Tex.  400;  8  Am.  Hi. 
Rep.  611. 


1992 


1993 


INJURIES  ON   REAL   PROPERTY. 


§  1149 


b-seers. 


I  property 


•ds  Tres- 

private 
I  em  Stifc, 
lor  those 
!ly  from 
no  way 
■elations 
lis  upon 
LIS  is  not 
11,  comes 
1(1  while 
machine 

■73;  31  Am. 
I.  11.  <  '<!.  V. 
lAm.  U:p- 

1 101  N.  Y. 

Iveston  Oil 
8  Am.  tJt. 


caused  by  a  defect  therein  which  the  owner  could  have 
discovered  by  the  exercise  of  reasonable  care.*  Ho  is  not 
under  obligation  to  strangers  to  put  guards  around  exca- 
vations made  by  him,  unless  such  excavations  are  so  near 
a  public  highway  as  to  be  dangerous,  under  ordinary  cir- 
cumstances, to  persons  passing  upon  the  way  and  using 
ordinary  care  to  keep  upon  the  proper  path;  in  which 
case,  he  must  take  reasonable  precautions  to  prevent  in- 
juries happening  therefrom  to  such  persons.'^  And  where 
one  is  expressly  or  impliedly  invited  to  come  upon  an- 
other's private  premises,  the  latter  must  use  care  and 
prudence  to  prevent  injury  to  him,  and  must  warn  him 
against  such  dangers  as  he  cannot  discover  for  himself.* 

Illustrations.  —  The  guests  of  a  tenant  occupying  a  house 
on  the  rear  end  of  a  lot,  instead  of  using  a  way  which  the  land- 
lord liad  opened  for  their  egress  through  an  adjoining  lot, — the 
direct  ogress  being  obstructed  by  some  building  operations  on 
the  front  of  the  lot, — undertook  to.  grope  their  way  through 
Bucli  unfinished  buildings  at  night,  and  were  injured.  Held, 
thiit  tlie  defendant  was  not  liable:  Roulston  v.  Clark,  3  E.  D. 
Smith,  366.  The  plaintiff,  in  going  to  a  fire  in  an  adjoining 
house,  ran  through  the  defendant's  store,  and  fell  into  an  exca- 
vation in  the  yard  in  the  rear.    Held,  that  the  defendant  was 


iLarmore  i\  Iron  Co.,  101  N.  Y. 
391;  .'51  Am.  Rep.  718. 

2  Overholt  v.  Vietbs,  93  Mo.  423;  3 
Am.  St.  Rop.  557. 

» Coil)y  V.  Hill,  4  Com.  B.,  N.  S., 
550;  Sweuny  v.  11.  R.  Co.,  10  Allen, 
308;  87  Am.  Dec.  644.  It  is  laid 
down  that  where  one  visits  the  pri- 
vate liouso  of  another  as  a  social 
guest,  tho  owner  is  bound  to  take  the 
sainu  care  of  him  that  he  takes  of 
himself  and  the  other  members  of  his 
estiililishinent,  and  no  more.  A  dec- 
laration averred  that  the  defendant 
was  posses-sed  of  a  hotel,  into  which 
he  had  invited  the  plaintiff  to  come  as 
a  visitor,  and  in  which  there  was  a 
ghss  (lo(ir,  which  it  was  necessary  for 
the  plaintitf  to  open  for  the  purpose 
of  kaxing  the  hotel,  and  which  the 
Iihintid',  i)y  the  permission  of  the  de- 
fendant, and  with  his  knowledge,  antl 
without  any  warning  from  him,  law- 


fully opened  for  tho  purpose  aforesaid, 
as  a  door  which  was  in  proper  coudi> 
tion  to  be  opened;  nevertheless,  by 
and  through  the  mere  carelessness, 
negligence,  and  default  of  the  defend- 
ant, the  door  was  then  in  an  insecure 
and  dangerous  condition,  and  unfit  to 
bo  opened,  and  by  reason  of  the  said 
door  being  in  such  an  insecure  and 
dangerous  condition,  and  of  tho  then 
carelessness,  negligence,  default,  and 
improper  conduct  of  the  defendant  in 
that  behalf,  a  largo  piece  of  glass  fell 
from  the  door  and  wounded  the  plain- 
tiff. It  was  held  that  the  declaration 
disclosed  no  cause  of  action  against 
the  defendant,  the  plaintiff  being  at 
the  hotel,  not  as  a  guest  for  a  reward 
paid  to  the  proprietor,  but  as  a  guest 
in  a  social  way,  the  case  stood  on  the 
same  grounds  as  if  it  had  been  a  pri- 
vate house:  Southcote  v,  fcstanley,  1 
Hurl.  &  N.  247. 


§1149 


NEGLIOENCB. 


1994 


not  liable:  Kohn  v.  Lovett,  44  Ga.  251.  A  woman  crossing  the 
defendant's  unfenced  grounds,  as  many  persons  were  accus- 
tomed to  do,  in  order  to  make  a  short  cut  and  avoid  an  angle 
in  the  street,  fell  into  an  open  and  unguarded  vault.  Held,  that 
the  defendant  was  not  liable:  Stone  v.  Jackson,  16  Com.  B.  199. 
The  defendant  corporation,  in  working  its  coal  mine,  threw  out 
a  pile  of  slack  on  its  own  land.  The  pile  presented  the  appear- 
ance of  coal  ashes.  The  land  was  not  fenced.  A  stranger  in 
the  neighborhood,  in  passing  over  the  slack,  was  burned.  Held, 
that  he  had  no  right  of  action  against  the  corporation :  McDon- 
ald V.  R.  R.  Co.,  35  Fed.  Rep.  38.  An  adult  was  crossing  A's 
land  without  right,  except  that  persons  with  A's  knowledge 
were  in  the  habit  of  constantly  crossing  it.  He  fell  into  a 
pool  of  water,  over  which  a  crust  had  so  formed  that  it  resem- 
bled dry  land,  and  was  drowned.  Held,  that  an  action  against 
A  was  not  maintainable:  Union  Stock  Yards  v.  Rourke,  10  111. 
App.  474.  A  laborer  employed  in  loading  ice  on  board  a  vessel 
from  the  wharf,  after  finishing  his  work,  went  on  board  the  ves- 
sel for  the  gratification  of  his  curiosity,  and  there  fell  down  an 
open  hatch-way  and  broke  his  leg.  Held,  that  the  owners  of  the 
vessel  were  not  liable:  Severy  v.  Nickerson,  120  Mass.  306;  21 
Am.  Rep.  514.  An  employee  of  the  owner  of  a  mine,  having  a 
few  moments'  leisure,  went  into  another  room  in  the  mine  to 
see  some  fellow-workmen,  and  was  killed  by  the  falling  in  of 
the  roof.  Held,  that  the  owner  was  not  liable,  although  ho  had 
acquiesced  in  a  custom  among  the  miners  to  visit  each  other 
when  not  actively  engaged:  Wright  v.  Rawson,  52  Iowa,  329;  35 
Am.  Rep.  275.  A  person  wishing  to  consult  a  surgeon,  whom 
he  erroneously  supposed  to  be  attached  to  a  foreign  steamship, 
about  bringing  his  family  to  this  country,  went  to  the  wharf  on 
a  day  of  the  week  other  than  that  when  only  it  was  open  to  the 
public  in  the  gate-keeper's  discretion.  Upon  finding  the  gate 
open,  he  went  in  with  a  companion,  without  objection,  and 
reached  her  deck  by  a  freight  gang-way.  There  a  supposed 
officer  met  them,  who  said,  "  Well,  gentlemen,"  and  who,  after 
the  reply,  "Good  day;  please  direct  us  to  the  doctor's  cabin," 
pointed  along  a  covered  passage-way,  saying,  "Go  along  that 
passage,  and  it  is  a  little  beyond  the  end  of  it."  Thereupon 
he  followed  his  companion  along  the  passage-way,  and  as  he 
was  emerging  therefrom,  upon  his  companion  saying,  "Look  at 
those  fellows  down  there,"  he  turned  his  head,  and  almost  im- 
mediately was  struck  in  the  back  and  knocked  into  the  hold 
by  a  bag  of  flour  about  to  be  lowered  through  an  adjoining 
hatch,  at  which  the  vessel  was  being  loaded.  Held,  that  tlie 
plaintiff  was  a  mere  licensee,  if  not  a  trespasser,  and  that  he 
could  not  recover  of  the  owner  of  the  vessel  for  the  injuries 
thus  sustained:  Metcalfe  v.  Cunard  Steamship  Co.,  147  Mass.  66. 


1995 


INJURIES   ON   REAL  PROPERTY. 


§1150 


Tho  defendant  had  contracted  to  do  certain  work  on  a  plot  of 
ground  where  buildings  were  erected,  and  excavations  were  go- 
ing on.  To  carry  out  the  work,  ho,  by  his  men,  worked  a  steam 
winch  and  crane,  with  a  chain  and  iron  tub  attached  thereto. 
Tlie  deceased  was  employed  by  the  owner  of  the  ground  to 
watch  the  materials  and  buildings.  He  had  no  duty  to  take 
part  in  the  excavating,  and  it  was  no  part  of  his  business  to 
stand  under  the  tub  as  it  was  raised.  While  watching  the  men 
working,  the  tub  fell  on  his  head  and  he  was  killed.  Held,  that 
the  defendant  was  not  liable.  The  deceased  was  there  to  watch 
the  materials  and  buildings.  He  had  no  business  with  tho  ma- 
chinery, nor  any  duty  to  watch  the  defendant's  men  at  their 
work.  He  was  thus  in  a  place  where  he  had  no  right  to  be, 
and  was  a  mere  licensee,  to  whom  the  defendant  owed  no 
duty:  Bachelor  v.  Fortesque,  47  J.  P.  308  (Eng.).  Defendant 
was  the  landlord  of  a  house  which  was  let  out  in  apartments 
to  several  tenants,  each  of  whom  had  the  privilege  of  using 
the  roof  (which  was  flat  and  covered  with  lead,  having  an  iron 
rail  on  its  outer  edge)  for  the  purpose  oi  drying  their  linen; 
the  access  to  the  roof  being  by  means  of  a  low  door  at  the  stair- 
head, about  two  feet  from  the  rail.  Plaintiff,  the  occupier  of 
one  of  the  rooms,  went  upon  the  roof  for  the  purpose  of  remov- 
ing some  linen,  when,  his  foot  slipping  and  the  rail  being  out 
of  repair  (and  known  by  the  landlord  to  be  so),  he  fell  through 
to  the  court-yard  below  and  was  injured.  Held,  that  the  mere 
license  to  the  lodgers  to  use  the  roof  as  a  drying-ground  im- 
posed no  duty  upon  defendant  to  fence  it,  or  to  keep  the  fence 
in  repair:  Ivay  v.  Hedges,  L.  R.  9  Q.  B.  Div.  80.  M.,  while  cross- 
ing the  private  grounds  of  a  railroad  company,  fell  into  an  un- 
protected pit  between  the  tracks  and  was  injured.  He  had 
often  crossed  there  before,  and  so  had  other  persons.  There 
was  at  most  only  a  license  by  the  company  to  cross,  and  no  in- 
vitation. Held,  that  defendant  was  not  liable:  Morgan  v.  R.  R. 
Co.,  19  Blatchf.  239. 


§1150.    Spring-guns,  and  Defense  of  Property.  —  It 

has  been  held  in  England  that  a  trespasser  having  notice 
that  spring-guns  are  laid  upon  the  premises  cannot  re- 
cover in  an  action  against  the  owner  thereof  for  in- 
juries sustained  thereby.*  And  that  when  a  trespasser 
without  such  notice  is  injured  in  the  same  way,  he  may 
recover  in  such  an  action.''     By  an  English  statute  it  is 

^Ilott  V.  Wilkes,  3  Bam.  &;  Aid.        « Bird  v.   Holbrook,   4  Bing.   628; 
304.  Ilott  V.  Wilkes,  3  Barn.  &  Aid.  304. 


§1150 


NEGLIGENCE. 


1906 


made  a  misdemeanor  to  set  out  spring-guns  or  man-traps 
on  one's  premises,  which  are  calculated  to  destroy  haniau 
life  or  inllict  grievous  bodily  harm,  except  in  the  case 
of  traps  set  to  destroy  vermin,  and  engines  set  from 
sunset  to  sunrise  in  dwelling-houses  for  the  protection 
of  the  same.^  Subsequent  to  this  sta,tute,  it  w^as  hold  iu 
England  that  the  owner  of  a  dog  which  was  impaled 
upon  a  spear  fixed  on  trees  to  kill  trespassing  dogs  was 
not  entitled  to  damages,  he  having  had  notice  that  the 
spear  was  there ;^  and  that  this  would  he  so,  even  if  the 
plaintiff  had  not  notice,  on  the  grouad  that  the  setting 
of  a  dog-spear  was  not  per  sc  an  illegal  act,  nor  rendered 
such  by  the  statute.  The  correctness  of  the  position  of 
the  court  of  common  pleas  in  Bird  v.  Holhrooh^  that, 
independentl}"  of  the  statute,  the  setting  of  spring-guns 
without  a  notice  was  an  unlawful  act  was  questioned.  In 
Woottoti  V.  Dawkins*  the  plaintiff  entered  the  defendant's 
garden  at  niglit,  and  without  permission,  to  search  for  a 
stray  fowl.  While  there  ho  came  in  contact  with  a  wire, 
which  caused  something  to  explode  with  a  loud  noLso, 
knocking  him  down,  and  slightly  injuring  his  face  and 
eyes.  The  plaintiff  was  nonsuited,  the  court  hokb'ng 
that  at  common  law  the  defendant  was  not  liable  for  tliid 
injury;  that,  under  the  statute,  it  was  not  enough  that 
the  instrument  was  calculated  to  create  alarm;  that  in 
the  present  case  there  was  no  eWdence  that  the  injury 
was  caused  by  a  spring-gun  or  other  engine  calculated  to 
destroy  human  life  or  inflict  grievous  bodily  harm,  in 
a  Connecticut  case  decided  in  1840,^  the  right  of  an  o^nier 
to  defend  his  property  in  his  absence  by  means  of  engines 
or  poisons  placed  so  as  to  kill  or  injure  trespassing  men 
iniraals  was  discussed  at  length  upon  principle  and 


:c  8  Geo.  IV.,  c.  18,  sec.  1;  24  A 
*>•    /•  ;      J.  100,  sec.  31. 

■  <  ,  ■!!  V.  Cviunp,  8  Mees.  &  W. 
7»iJ.  Auil  see  Deaue  v.  Clayton,  4 
Taunt  489. 


3  4  Bing.  628. 
*2  Com.  B.,N.  S.,  413. 
''  Joluison  V.  Patterson,  14  Coon.  1; 
35  Am.  Dec.  96. 


1906 


1997 


INJURIES    ON   REAL   PROPERTY. 


§1150 


■traps 
era  ail 
3  case 
from 
ection 

I  eld  in 
iipalod 
gs  was 
lat  tlie 

if  llie 
setting 
sndcrcd 
ition  ot 
'c,^  that, 
Lig-guns 
.ed.     In 
nidant's 
ch  for  a 

fi  wire, 

II  iiolsc, 

'iWie  and 

liokling 

for  lliis 

|gli  that 
that  in 
injury 
ihited  to 
rm.     In 
In  o^nier 
lengincs 
ig  men 
Die  and 


Coau,  1; 


ill  view  of  the  English  authorities,  and  it  was  held  that 
110  such  right  exists  in  Connecticut.    In  a  subsequent  case 
ill  the  same  state'  the  subject  received  a  thorough  exam- 
ination.     The  defendant  was  indicted  for  a  nuisance  in 
placing  spring-guns  in  liis  blacksmith-shop,  so  as  to  en- 
danger passers-by  on  the  highwaj'.   The  jury,  by  a  special 
verdict,  found  that  the  defendant  placed  spring-guns  in 
his  shop  for  its  protection  against  burglars;  that  the  guns 
VKYO  loaded  with  large  shot,  and  so  placed  as  to  discharge 
their  contents  obliquely  towards  the  highway,  the  traveled 
path  of  which  was  about  a  rod  and  a  half  from  the  shop; 
that  the  shop  was  lathed  and  plastered  on  the  inside,  and 
double-boarded  on  the  outside,  but  that  it  was  possible 
that  scattering  shot  might  pass  through  the  boards  at 
places  where,  by  reason  of  the  cracks  between  them,  there 
\viis  not  a  double  thickness  of  boards;  and  that  the  travel- 
ing public  were  afraid  of  the  guns.     The  court  held  that 
the  apprehension  of  fear  shoAvn  was  not  sufScient;  that 
the  mere  act  of  setting  spring-guns  on  one's  own  premises 
for  their  protection  is  not  unlawful  in  itself,  but  the  per- 
son doing  it  may  be  responsible  for  injuries  caused  thereby 
to  individuals,  and  may  be  indictable  for  the  erection  of 
a  nuisance,  if  the  public  are  subjected  by  it  to  any  danger; 
thatwliat  a  man  may  not  do  directly  he  may  not  do  indi- 
rectly; that  a  man  may  not,  therefore,  place  instruments 
of  destruction  for  the  protection  of  his  property,  where  he 
would  not  be  authorized  to  take  life  with  his  own  hand 
for  its  protection;  that  the  right  to  take  life  in  defense  of 
property,  as  well  as  of  person  and  habitation,  is  a  natural 
right,  but  the  law  limits  its  exercise  to  the  prevention  of 
forcible  and  atrocious  crimes,  of  which  burglary  is  one; 
that  in  the  absence  of  any  statutory  provision  making  it 
burglary  to  break  and  ent«r  a  shop  in  the  night-time 
with  intent  to  steal,  and  by  the  early  strict  rules  of  the 
common  law,  a  man  may  not  take  life  in  the  prevention 

^  State  V.  Moore,  31  Coun.  479;  83  Am.  Dec  159. 


§  1150 


NEOLiaENCE. 


109S 


of  such  a  orimo;   but  that  tho  habits  of  the  pooplo  and 
other  circuniHtancos  havo  so  greatly  changed  since  the  an- 
cient  rule  was  cstablLilied  that  it  is  very  questionable 
whether,  in   view  of  the  largo  amount  of  property  now 
kept  in   warehouses,  baaks,  and  other  out-buildings,  it 
should  not  be  l)eld  lawful  to  place  instruments  of  deslruc- 
tion  for  the  protection  of  such   property;   that  breaking 
and  entering  a  shop  in  the  night  season  with  intent  to 
steal  is,  by  the  law  of  Connecticut,  burglary;  and  that  tho 
placing  of  spring-guns  in  such  a  shop  for  its    defensso 
would  be  justilied  if  the  burglar  should  bo  killed  by  them; 
that  the  guns  would,  however,  constitute  a  nuisance  if 
they  cause  actual  danger  to  passers-by  in  the  street;  hut 
tliiit  the  danger  to  the  public  must  be  of  a  real  and  suh- 
stantial  nature.    In  a  Kentucky  case  it  has  been  held  that 
where  a  j)erson  has  valuable  property  in  a  strong  ware- 
house well  secured  by  locks  and  doors,  he  may,  as  an  ad- 
ditional security  at  night,  erect  a  spring-gun  which  can 
only  be  made  to  ejqilodo  by  entering  the  house;  and  if  a 
slave   in  endeavoring    to    break  into  the  warehouse  is 
ki'.led  by  such  spring-gun,  tho  owner  of  tho  warehouse 
will  not  bo  liable  to  the  master  of  tho  shive  for  his  value.' 
In  Connecticut,  where  the  defendant  had  notified  tho 
plaintilF  that  he  had  sprinkled  poisonous  meal  on  iho 
ground,  and  that  if  he  did  not  keep  his  chickens  away 
they  would  be  poisonod,  and  tho  plaintiff  did  not  restrain 
them,  but  they  went  on  tho  land  of  tho  respondent,  ate 
the  poisone<l  meal,  and  die<l,  it  was  held  that  the  defend- 
ant was  liable  in  damages.^      This  case  goes  further  than 
an  early  English  case,  where  it  was  held  that  if  a  nuui 
place   dangerous    traps    baited  with    flesh   in     his   own 
ground,  so  near  to   a    highway,  or   to  tho    premises  of 
another,  that  dogs  passing  along  the  highway,  or  kei)t  on 
his  neighbor's  premises,  must  probably  be  attracted  by 


*  Gray  r.   Combs,    7  J.  J.   Marsh. 
478;  23  Am.  Dec.  431. 


'Johnson  v.  Patterson,  14  Coim.  1; 
35  Am.  Dec.  90. 


1009 


INJURIES   ON    REAL   PROPERTY. 


§1151 


tlu'ir  instinct  into  tho  traps,  and  if  in  consoquonco  of 
siicli  act  his  neighbor's  dogs  arc  so  attracted,  and 
tbii'ohy  injured,  ho  is  liable  in  damages.' 

iM.rsTitATioNa.  —  Defendant  wet  a  pprin^^-gun  in  his  vineyard 
to  pfotoct  liJH  fruit  from  trospassiTs  who  woro  in  tin;  habit  of  in- 
VMilinj;  it.  IMaintiff,  havinjj;  no  knowledge  of  th(^  gun,  entered 
tlic  vineyard  for  the  purpose  of  ntealing  fruit,  and  was  injured 
by  Ji  (hscharge  of  the  gun.  IfrhJ,  that  he  was  cntithnl  to  re- 
cover diiniagi'S  for  the  injuries  sustained  thereby:  Iluolcer  v. 
Miller,  'M  Iowa,  613;  18  Am.  Hep.  18. 

g  1151.     Persona  Invited  Expressly  or  Impliedly. — 

Tiie  owner  or  occupant  of  premises  is  bound  to  keep  them 
Side  as  to  all  persons  coming  at  his  invitation,  express  or 
iin[>lied,  on  any  business  to  bo  transacted  by  or  with  him, 
or  on  his  premises,  and  this  extends  to  the  land,  tho  house, 
aud  the  access  to  it.''     A  warehouseman  is  bound  to  keep 


>  Towrisciid  V.  Wathon,  9  East,  277. 
Ah  to  injuries  to  animala  caused  by 
ferocious  <U)gx,  sco  further,  pout,  Divia- 
ion  Hi.,  Title  Animals. 

-  Carloton  v.  Franconia  Irou  Co.,  99 
MasH.  'JKJ;  Bennett  v.  11.  R.  Co.,  102 
U.  -S.  ,')77;  luilerinaur  v.  Dames,  L.  R. 
1  Com.  P.  274;  L.  R.  2  Com.  P.  311;  3G 
L.  J.  (.'oni.  P.  IS! ;  White  v.  Franco,  L. 
K.  2  Vom.  P.  Div.  308;  Chajimau  v. 
Rotlnvoll,  El.  B.  &  E.  108;  4  Jur.,  N. 
S.,  IISO;  27  L.  J.  Q.  B.  315;  Freer?;, 
ramcron.  4  Rich.  228;  55  Am.  Dec. 
COIi;  Luililington  r.  Miller,  4  Jones  & 
S.  i;  Ackert  v.  Lansing,  5!)  N.  Y. 
640;  Gilbert  v.  Nagle,  118  Mass.  278; 
Elliott  V.  Pray,  10  Allen,  378;  87 
Am.  Doc.  (55;};  Welch  v.  McAllister, 
15  Mo.  App.  402;  McKoe  v.  Bid- 
weii,  74  Pa.  St.  218;  Oyshtorbank 
V.  (tanliior,  41)  N.  Y.  Sup.  Ct.  2(i3; 
DoiiaMsin  v.  Wilson,  GO  Mich.  8G; 
1  Am.  St.  Rep.  487;  Hmiatoii  etc. 
II.  U.  Co.  (..  Boozer,  70  Tox.  530;  8 
Am.  .St.  Ro|).  015;  Gilbert  v.  Naglc, 
llSMaHs.  278,  tiie  court  saying:  "A 
sliop-kcicper  who  invites  the  public 
to  ills  shop  to  inspect  and  ])urchaae 
tho  wares  and  articles  which  ho  has 
oil  cxliibition  is  bound  to  keep  his 
piemisoM  in  a  reasonably  safe  con- 
dltiou  for  the  purposes  for  which  they 
are  used.    If  tliey  are  not  iu  such  con- 


dition, and  a  person  is  injnrod  thereby 
while  examining  or  purclia.sing  his 
wares,  and  while  in  the  exercise  of 
due  care,  and  iu  no  wise  transcending 
tiie  license  thus  given  to  examine,  the 
sliop-kceper  is  lial>le  in  an  action  for 
the  injury.  How  far  a  visitor  may 
touch  or  handle  the  wares  exposed  fur 
sale  depends  upon  the  nature  and 
character  of  the  article,  and  the  uses 
for  which  it  is  intended.  Somo  articles 
it  would  be  improper  or  iinneces.sary 
to  touch;  others  must  be  examined  by 
the  hand  in  order  to  deterniine  their 
quality  or  fitness.  To  what  extent  tho 
visitor  may  exercise  this  privilege  of 
examination  is  to  be  determined  upon 
the  facts  of  each  case."  As  to  who  aru 
within  this  protection,  it  is  said  in  the 
leading  English  case  of  Indermatir  v. 
Dames,  L.  R.  1  Com.  P.  274,  L.  R.  2 
Com.  P.  311:  "  Wc  are  to  consider 
what  is  the  law  as  to  tlie  duty  of  tho 
occupier  of  a  building  witli  reference 
to  persons  resorting  thereto  in  tho 
course  of  business,  upon  his  invitation, 
express  or  implied.  Tlie  common  case 
is  that  of  a  customer  in  a  shop;  but  it 
is  obvious  that  this  is  only  one  of  a 
class,  for  whether  the  customer  is  ac- 
tually chaffering  at  the  time,  or  actu- 
ally buys  or  not,  he  is,  according  to 
un  undoubted  course  of  authority  aud 


§1151 


NEGLIGENCE. 


2000 


the  approaches  on  his  premises  safe  for  the  use  of  his  cus- 
tomcrs.  Unless  ho  does  so,  he  is  liable  for  an  injury, 
although  no  one  may  over  have  been  Imrt  before.'  Quo 
who  neglects  to  comply  with  the  statute  requiring  open- 
ings for  elevators  to  be  protected  by  railing  and  trap-doors 
is  guilty  of  negligence  per  se.^  Whore  the  owner  of  a  city 
lot  has  for  years  sufifored  the  public  to  cross  the  \c  t  on 
foot,  it  is  his  duty,  on  making  an  excavation  in  the  path 
for  a  building,  to  place  a  guard  or  warning  there,  and 
he  is  liable  to  one  who  in  endeavoring  to  cross  is  in- 
jured by  the  absence  thereof." 

But  the  liability  does  not  extend  to  parts  of  the  prem- 
ises  not  intended  for  visitors,  and  to  which  they  are 
neither  invited  nor  expected  to  go;*  nor  where  the  in- 
jury is  received  in  consequence  of  entering,  not  by  the 
usual  way,  but  by  a  route  not  intended  for  visitors  or 


practice,  entitled  to  the  exorcise  of 
reasonable  care  by  the  occupier  to 
prevent  damage  from  unusual  dancer, 
of  which  the  occupier  knows  or  ought 
to  know,  —  such  as  a  trap-door  left 
open,  unfcnced,  and  unlighted.  This 
protection  does  not  depend  upon  the 
tact  of  a  contract  being  entered  into 
in  the  way  of  the  shop-keeper's  busi- 
nesd  during  tiie  stay  of  the  customer, 
but  upon  the  fact  that  the  customer 
has  co:nc  into  the  shop  in  pursuance 
of  a  tacit  invitation  given  by  the  shop- 
keeper, with  a  view  to  business  which 
concerns  liiinself.  And  if  a  customer 
were,  utter  buying  goods,  to  go  back 
to  the  shop  in  order  to  complain  of  the 
quality,  or  that  the  change  was  not 
right,  ho  would  be  just  as  much  there 
upon  business  which  concerned  the 
sliop-keeijcr,  and  as  much  entitled  to 
protection  during  this  accessory  visit, 
though  it  miglit  not  be  for  the  shop- 
keeper's benefit,  as  during  the  i)rinci- 
pal  visit,  wliich  was.  And  if,  instead 
of  going  liinisclf,  the  customer  were  to 
send  his  servant,  the  servant  would  be 
entitled  to  the  same  consideration  as 
the  master.  The  class  to  which  the 
customer  belongs  includes  persons  who 
go,  not  as  mere  volunteers,  or  licensees, 


or  guests,  or  servants,  or  persons  whose 
employment  is  such  that  danger  may 
be  considered  as  bargained  for,  l)ut 
who  go  upon  business  which  concerns 
the  occupier,  and  upon  his  invitation, 
express  or  implied.  And  with  respect 
to  such  a  visitor  at  least,  we  c(MHiilt;r 
it  settled  law  that  he,  using  reasonable 
care  on  his  part  for  his  own  safety,  ia 
entitled  to  expect  that  the  occupiur 
shall,  on  his  part,  use  reasonal^le  care 
to  prevent  damage  from  unusual  dan- 
ger which  he  knows  or  ought  to  know; 
and  that,  where  there  is  evidence  of 
neglect,  the  question  whether  such 
reasonable  care  has  been  taken,  by 
notice,  lighting,  guarding,  or  other- 
wise, and  whether  there  was  contrib- 
utory negligence  in  the  sufferer,  nuist 
be  determined  by  a  jury  as  nxatter  of 
fact." 

•  Nave  V.  Flack,  90  Ind.  205;  46 
Am.  Rep.  205. 

•^  McRickard  v.  Flint,  13  Daly,  541. 
'  Graves  v.  Thomas,  95  Ind.  lilil;  43 
Am.  Rep.  727. 

*  Murray  v.  McLean,  57  111.  ';78. 
Zoebisch  v.  Tarbell,  10  Allen,  ."iS.};  S7 
Am.  Dec.  6G0;  McKee  v.  Bidwell,  74 
Pa.  St.  21S.  And  see  VVilkinsou  v. 
Fairrie,  1  Hurl.  &  C.  633. 


2000 


2001 


INJURIES   ON   REAL   PROPERTY. 


§1151 


119  CllS- 

injury, 
'     Quo 
;  opou- 
p.doors 
f  a  city 
I  If  I  oil 
lie  path 
ivc,  and 
3  is  in- 

lO  prom- 
hey  are 
the  in- 
t  by  the 
sitors  or 

raons  whose 
diinger  may 
ed   for,  l)ut 
ich  concerns 
J  iuvitiition, 
vith  respect 
we  coiniiler 
reasonable 
ni  safety,  ia 
he  occui)ier 
onahle  eare 
uusual  dan- 
ht to  know; 
evidence  of 
lethtr  such 
taken,  hy 
or  othor- 
■as  coutrib- 
ffcrer,  nuist 
,s  matter  of 

d.   205;  46 

Daly,  541. 
Ind.  301 ;  43 

17  111.  _o-:8. 

len,  •>S5;  87 
liidwell,  74 
hlkiasou  V. 


cu^toniors  to  use;'  nor  where  the  person  comes  at  an  un- 
usual liour.  In  a  Vermont  case,  the  phiintiU'went  to  tho 
defendant's  house  late  in  the  evening,  to  buy  a'lx  bushels  of 
oats.  The  defendant  had  no  oats  to  sell,  but  yielding  to 
tiio  plaintilF's  importunities,  he  consented  to  sell  him  tho 
oals  to  accommodate  him.  The  defendant  always  kept  his 
granary  locked;  but  he  obtained  tho  key  by  sending  some 
distance  for  it,  and  went  with  tho  plaintill'  to  the  upper 
iloor  of  the  granary,  whore  the  oats  were,  and  while  tho 
dclVndant  stepped  back  to  get  a  measure,  tho  plaintiff, 
walking  about  the  floor  in  the  dark,  fell  through  an  aper- 
ture therein  and  was  injured.  It  was  held  that  tho  de- 
fendant was  not  liable  for  the  injury.''  In  an  Illinois  case 
it  is  said  that  if  private  warehousemen,  merchants,  Idack- 
smiths,  millers,  or  other  persons  engaged  in  business, 
construct  approaches  to  their  places  of  business,  knowing 
the  same  to  be  defective,  or  have  trap-doors  known  to  be 
mihiafe,  where  their  customers  must  necessarily  pass,  and 
such  defects  are  concealed,  or  not  apparent,  they  will  be 
liable  for  any  injury  resulting  therefrom.  But  unless  a 
person  is  under  some  public  duty  to  repair  a  way,  even 

of  the  defendant's  grain,  kept  con- 
stantly locked.  Tho  plaintiflf  was  per- 
mitted there  for  otio  simiilo  specific 
matter  of  business,  —  to  take  six  l>ush- 
els  of  oats;  the  oats  were  shown  him; 
to  facilitate  tho  delivery,  the  defend- 
ant went  for  his  measure;  he  left  tho 
Elaintiff  at  the  oats,  where  ho  should 
e,  in  the  dark,  but  in  a  safe  place. 
The  oats  could  be  delivered  at  no  other 
place,  and  no  other  matter  of  business 
was  permitted  to  hiiii  there.  If,  for 
curiosity  or  other  motive,  he  chose  to 
occupy  that  moment  in  tho  darkness 
in  wandering  about  tho  granary,  and 
plaintill'  that  the  means  of  acce.'^s  was    lost  an  eye  by  the  point  of  a  scythe, 

or  stumbled  over  a  horse-rake  and 
maimed  himself,  or  fell  through  a 
scuttle  in  the  floor,  he  was  doing  what 
he  was  not  invited  or  permitted  by 
the  defendant  to  do,  .and  what  was  no 
part  of  the  business  in  hand;  and  we 
think  this  departure  was,  of  liia  moi- 
tion  and  at  bis  risk^'" 


» Victory  v.  Baker,  G7  N.  Y.  S()(); 
Parker  r.  Portland  Pub.  Co.,  (i9  Mo. 
17:?:  :il  Am.  Rop.  2()2. 

n'Mxo  V.  Whitcomb,  48  Vt.  127; 
2!  Am.  Rep.  120,  the  court  saying: 
"In  tliis  ease  although  tho  de.cudaut 
(lid  not  wish  to  sell  the  oats,  and  only 
yielileil  to  the  importunity  of  the 
liliiiiitill".  and,  to  his  own  ini;onvc- 
iiiuiice,  went  to  his  granary  late  at 
iiiglit  to  favor  and  accommodato  the 
piaintili",  yet,  .allowing  the  plaintitl'  to 
gn  into  the  granary  with  him  to  take 
the  itelivcry  of  the  oats,  we  think,  the 
(lefeiiiknt  did  assume  the  tluty  to  the 


reason  il'ly  safe.  And  if  the  jdaiutiff, 
on  giiiiic,'  to  or  returning  from  the  oats, 
nr  in  putting  them  into  bags  and  tak- 
ing thu  il'livery,  while  doing  that  mat- 
ter of  l)usin(;ss,  hadacciilentally,  with- 
out wu-uing,  slipped  into  a  pitfall,  it 
woiiil  liave  been  a  very  diflorent  case. 
Tlie  granary  was  a  private  receptacle 
126 


§  iir.i 


XEOUOENCE. 


2002 


thoiiLjli  to  his  plnco  of  business,  ho  will  not  bo  liable,  on 
failini;  to  do  so,  for  injury  thereby  caused  to  others,  lu 
this  caso,  tho  plaintiff  having  [airchasod  grain  of  a  ware- 
housonuin  sent  his  servant  to  got  it.  The  warehouse  wus 
situated  on  a  wharf,  and  while  ho  was  in  tho  office  aceord- 
ing  to  the  rules  adopted  by  the  defendants,  to  receive  a 
ticket  lor  a  load  of  grain,  his  horses,  which  had  boon 
hitclicd  to  a  clog,  backed  over  tho  side  of  tho  wlmrf  an(l 
wore  drowned.  The  court  held  that  tho  defendants  weiu 
not  under  any  legal  duty  to  place  guards  on  tho  wluirf  to 
prevent  teams  from  falling  into  the  water,  or  to  provide 
places  for  hitching  horses  at  their  warehouse,  and  were 
not  liable  for  an  injury  growing  out  of  the  want  of  such 
provision  being  made.'  One  entering  tho  premises  of  an- 
other, whether  by  invitation  or  as  a  mere  licensee,  is  him- 
self  bound  to  exercise  ordinary  care  and  diligence,  and 
failing  in  this  and  suffering  injury,  he  cannot  recovcr.- 
But  though  a  customer  knows  tho  approach  to  be  danger- 
ous, it  is  not  necessarily  negligent  in  him  to  use  it.''  But  in 
an  action  by  A  against  B,  his  lessor,  for  injuries  caused  l)y 
the  broaking  down  of  a  balcony  where  A  was  trying  to 
carry  a  stove,  where  there  was  ovidenco  that  A  know  uf 
the  weak  condition  of  the  balcony,  it  was  held  that  B  was 
entitled  to  an  instruction  that  A  could  not  recover  if 
guilty  of  contributory  negligence.* 

Illustrations. —  A  clerk  in  a  store  invited  a  customer  into  a 
dark  room  in  the  store, and  while  there  tho  lutter  fell  into  an  opoii 
cistern  in  the  room.  Held,  that  the  propriccor  was  responsible: 
Freer  v.  Cameron,  4  Rich.  228;  55  Am,  Doc.  663.  A  gas-fitter, 
having  contracted  to  fix  certain  gas  apparatus  to  the  defend- 
ant's promises,  sent  his  workman,  the  plaintiff,  after  the  appa- 
ratus had  been  fixed,  and  by  appointment  with  the  defendant, 
to  see  tliat  it  acted  properly.  Tlie  plaintiff,  having  for  this  pur- 
pose gone  upon  the  defendant's  premises,  fell  through  an  uii- 
fenced  shaft  in  the  floor  and  was  injured.     It  was  proved  that 

'  Buckingham  v.  Fisher,  70  111.  12L        »  Nave  v.  Flack,  90In(l.  20 j;  4G  Am. 
2  Pailvor  V.  Portland  Pub.  Co.,   G9    Rep.  205. 
Me.  173;  31  Am.  Rep.  262.  ♦  Mullen r.  Rainear,  45  N.  J.  L.  520. 


2002 


2003 


INJURIES    ON    RKAL   morERTY. 


8   ll.'l 


ble,  oil 
rs.     In 
tt  wurc- 
uso  WUrf 
uceord- 
Dceivo  11 
ad  boon 
Imrf  uutl 
,nts  weru 
wharf  lo 
»  provide 
lud  were 
t  of  buch 
ses  of  an- 
c,  is  liira- 
;euec,  aiul 
i  recovcr.- 
t)e  danger- 
it.*   Bui  ill 
caused  hy 
trying  to 
^  knew  of 
,hat  1^  WHS 
recover  if 


)mer  into  a 
Into  ur.  open 

responsible: 
gas-fitter, 

the  dt-^fend- 
the  iippa- 
defendant, 

for  this  pur- 

(ugli  1111  ^1"' 
proved  that 

,N.J.L.520, 


the  preniiflcs  wore   constructed   in  the   manner  usual  in  the 
(Icfcndaiit'H  business,  —  that  of  a  sugar  refiner, —  but  that  fho 
hli;ifl  could,  when  not  in  use,  have  Ijeen  fenced  without  injury 
to  tlu;  business.  i/t'/(/,  that  the  tlufendant  was  liable:  Jnih'nnttur 
V.  Dames,  L.  K.  1  Com.  V.  274;  L.  K.  'J  Com.  P.  311.     A  buyer 
liaving  ordered  some  stoves  of  a  whok-alo  firm  whoso oHiee was 
jM  a  basement  and  whoso  storage  rooms  wore  above,  went  in  the 
afU'inoon  to  get  them,  and  finding  no  one  in  the  oflice,  i)ro- 
curded  to  the  elevator  way  to  call.     The  basement  was  dark, 
and  in  so  doing,  ho  fell  into  an  elevator  pit,  of  the  existence  of 
which  lie  was  ignorant,  and  was  injured.    Whenever  ho  had  pre- 
viously been  there  he  found  a  guard  around  the  pit,  but  it  liad 
now  been  removed.     IlchJ,  that  a  verdict  in  his  favor  should  not 
be  disturbed:  Harris  v.  Perry,  23  Ilun,  244,     Several  ov/ners  of 
adjoining  lots  had  established  for  their  own  convenience  a  road 
alon^  one  line  thereof  connecting  with  a  public  alley  at  one  ex- 
t;c'inity  and  a  street  at  the  other.     One  of  the  owners  built  a 
platform  across  it,  so  low  that  one  sitting  on  a  wagon  could  not 
drive  under  it.   This  had  existed  for  many  years,  and  the  pub- 
lic had  used  the  road  in  that  condition.     A  man  employed  by 
one  of  the  other  owners  in  hauling  merchandise  on  said  road 
WHS  killed  by  contact  with  the  platform  after  dark,  there  being 
no  light  or  other  signal  of  warning,  and  being  ignorant  of  the 
platform.     Held,  that  no  action  would  lie  against  the  proprietor 
of  the  platform:  Cnhill  v.  Layton,  57  Wis.  600;    46  Am.  Rep. 
4G.    The  plaintiff,  a  licensed  waterman,  having  complained  to 
a  person  in  charge  that  a  barge  of  the  defendant's  was  being 
navigated   unlawfully,   was   referred   to  defendant's   foreman. 
While  going  along  defendant's  premises  in  order  to  see  the  fore- 
man, the  plaintiff  was  injured  by  the  falling  of  a  bale  of  goods 
so  placed  as  to  be  dangerous,  and  yet  to  give  no  warning   of 
danger.     Held,  that  the  plaintiff  was  not  a  bare  licensee,  but 
was  on  defendant's  premises  by  theinvitationof  defendant,  and 
for  a  purpose  in  which  both  plaintiff  and  defendant  had  a  common 
interest,  and  the  defendant  was  liable  for  the  injury:  White  v. 
Fraivr,  L.  R.  2   Com.  P.  Div.  308.     The  servant  of  a  lumber 
dealer  piled  lumber  in  his  yard  so  negligently  that  the  wheel 
of  a  customer's  wagon  struck  it,  in  consequence  of  one  of  the 
accidents  of  travel,  causinr;  it  to  fall  on  the  plaintiff,  a  third 
person,  while  lawfully  on  the  premises.      Held,  that  the  lum- 
ber dealer  was  liable:  Pastene  v.  Adams,  49  Cal.  87.    A  police- 
nuui  went  into  a  business  house  at  night  through  an   upper 
window,  to  search  for  burglars  whom  he  suspected  to  be  at  work 
there.     He  fell  through  a  hoistway  left  open  in  violation  of  a 
city  ordinance.     Held,  that  the  proprietors  were  liable:  Thjan  v. 
Thninticn,  6  Jones  &  H.  133.     Tiiere  was  a  passage-way  lead- 
ing from  a  public  street  to  the  othce  of  a  brewery,  which  was 


§1151 


NEGLIGENCE. 


2004 


the  regular  means  by  which  customers  of  the  brewer  passed  lo 
and   fro.     A  customer  who  had  visited  the  office  on  business 
and  was  retiring  to  the  street  fell  into  a  trap-door  in  the  jjas- 
sage-way,  which  the  brewer  or  his  servants  had  wrongfully  left 
open,  unguarded,  and  unlighted.     Held,  that  the  brewer  was 
responsible:    Chapman  v.  h'othweU,  El.  13.  &  E.  168.     G.,  who 
was   to   receive   a   commission    if    she    effected   a  Bale  of   a 
eewing-machine,    came  to   the   dealer's    shop  with   a   i)erson 
whom   she    had    procured   to  buy   the   machine,   and   whilo 
there   went    to    the    rear   of    the   shop,    and    in    examining 
another    machine  which  she    had    no    intention    of    buying, 
fell  through  a  trap-door  and  was  injured.     Held,  that  whetiur 
she    was  a   trespasser  was  a    question   of  fact  for  the  jury: 
Gilbert  v.  Nagle,  118  Mass.  278.      The  plaintiff  was   injured 
by  falling   through    a   trap-door   in   the   defendant's   factory, 
in   a    portion  of   the   building  not    open  to   the  public,  hut 
designed   only   for   workmen.      There   was   no  evidence   that 
the  plaintiff    entered    in    consequence  of    any  invitation    or 
inducement,  express  or  implied,  on  the  part  of  the  defendants. 
Hdd,  that  he  could  not  recover  damages  therefor:  Zoehm-h  v. 
Tarhell,  10  Allen,  385;    87  Am.  Dec.  660.     A  cooper  came  to  a 
tobacco  warehouse  to  deliver  barrels,  according  to  his  custom. 
Without  the  knowledge  of  any  one  on  the  premises,  he  wont  to 
the  rear  of  the  building,  and  there  fell  through  the  hatchway  of 
a  freight  elevator,  which  was  in  use,  and  the  bars  protecting 
which    were  withdrawn.      He   knew   of  the   existence   of  the 
hatchway,  and,  after   the   accident,  stated   that   "  ho   did   not 
know  what  took  him  there;  he  had  no  business  there  at  all." 
Held,    that   his   administratrix   could    not   recover    dainafres: 
Murray  v.  McLean,  57111.  378.  The  defendant  dug  a  pit  under 
a  cotton-gin,  near  the  highway,  leaving  it  uninclosed,  with  corn 
and    cotton-seed    s^^attered    about    it.      The    plaintiff's   cow, 
turned   out  to    commonis,  remote    from    the    gin,  fell  into  it 
and   was    killed.      Held,   that   defendant    was    liable:     .fanes 
V.   Nichols,   40   Ark.   207;    55  Am.  Rep.  575.      The    plaiiuifF 
had  ( ''dered    some  coals    to    be   sent    to  a    railroad  station. 
The  p-  ictice   at   the   station    was    for    Ihe    consignees   \o  as- 
sist in  tipping  the  trucks.     For  this  purpose  the  plaintitr,  to 
whom  coals  had  been  consigned,  went  along  the  flagged  way, 
and  was  stepping  down  from  the  wagon  after  getting  his  eoaln, 
when  some  of  the  Hags,  being  in  a  defective  condition,  ^^ive 
way,  and  he  was  thrown  down  into  the  cellar  and  sustained  .'-(vere 
injuries.     The  question  was,  whether  the  plaintiff  came  within 
the  category  of  a  mere  licensee,  or  whether  he  came  within  tho 
class   of  contractors  who  went  on   business   common    to   both 
parties.     Held,  that  he  was  not  a  mere  licensee,  and   tiie  (Jo- 
fendaut  railroad  was  liable:  Holmes  v.  E.  R.  Co.,  L.  R.  6  Ex. 


2005 


INJURIES   ON  EEAIi   PROPERTY. 


§1151 


123;  L.  R.  4  Ex.  254.  Defendant  permitted  the  public  habitu- 
ally to  use  his  private  bridge.  He  knew  it  to  be  unsafe.  Plain- 
tifl  was  injured  by  the  breaking  down  of  the  bridge.  Held, 
that  he  might  maintain  an  action  therefor:  Campbell  v.  Boyd, 
88  N.  C.  129;  4S  Am.  Rep.  740.  A  leased  the  third  and  fourth 
floors  of  a  building,  of  which  B  occupied  the  lower  part.  In 
the  hall  leading  from  the  outer  door  to  the  stairs  which  gave 
access  to  the  upper  stories  was  a  hatchway  closed  by  a  trap- 
door, occupying  nearly  all  the  passage-way,  used  by  defendant, 
and  open  all  day,  but  customarily  shut  from  six  to  eight  o'clock 
in  the  evening.  A  went  to  the  premises  between  eight  and  nine 
o'clock  in  the  evening,  and  the  trap-door  being  open,  fell  through 
and  was  killed.  Held,  that  B  was  liable  in  damages,  and  that 
A  WHS  not  negligent  in  not  having  procured  a  light  or  otherwise 
inquired  whether  the  trap-doer  was  open:  Totten  v.  Phipps,  52 
N.  Y.  354.  Plaintiff  went  to  a  public  house,  by  appointment,  to 
D.eet  a  friend,  and  while  waiting  for  his  friend,  fell  through  a 
hole  in  the  floor,  which  was  being  repaired.  Ileld,  that  the 
keeper  was  liable:  Uxford  v.  Prior,  4  Week.  Rep.  611.  A  statute 
provided  that  elevator  openings  in  buildings  should  be  guarded 
by  railings,  and  imposed  a  penalty  for  violation.  A  police- 
oUicer,  in  pursuance  of  his  duty,  entered  a  building  which  he 
found  open  in  the  night-time,  for  the  purpose  of  inspection,  and 
fell  through  an  unguarded  elevator.  Held,  that  the  owner  and 
occupant  was  liable:  Parker  v.  Barnard,  135  Mass.  116;  46  Am. 
Rep.  450.  Plaintiff"  fell  down  a  hoistway,  the  approach  to  which 
defendant  should  have  kept  closed,  but  carelessly  left  open. 
Plaintifi',  had  he  looked,  would  have  ascertained  the  condition 
thereof,  but  failing  to  locic,  fell  through  and  was  injured.  Held, 
that  his  action  could  not  be  maintained:  Brenstein  v.  Mattson, 
10  Daly,  336.  W.  was  employed .  by  the  owner  of  a  building 
occupied  as  a  store  to  excavate  a  cellar  underneath  it.  The 
building  was  raised  and  placed  on  posts.  A  clerk  employed  in 
the  8tore,  at  the  request  of  a  customer,  went  into  the  cellar  to 
gft  her  hat,  which  had  blown  there,  and  while  there  the  build- 
ing fell  and  injured  him.  In  an  action  against  W.  for  the  in- 
jury occasioned  by  the  negligence  in  making  the  excavation, 
held,  that  *he  clerk  was  entiled  to  recover:  Lamparter  v.  Wal- 
bauin,  45  111.  444;  92  Am.  Dec.  225.  In  an  action  against  a 
railroad  company  by  one  injured  in  stepping  through  a  rotten 
plunk  on  a  station  platform.  It  appeared  that  the  plaintiff  went 
there  at  the  request  of  the  owner  of  an  animal  killed  on  the 
track,  the  owner  being  unable  \,^  read,  and  desiring  plaintiff  to 
read  a  notice  posted  there.  Held,  that  the  plaintiff  was  prop- 
erly there:  St.  Louis  etc.  R.  R.  Co.  v.  Fairhaira,  48  Ark.  491.  M., 
a  guest  at  a  hotel,  being  assigned  to  a  room  which  he  had  before 
occupied,  and  believing  he  could  find  it  without  difficulty,  de- 


§  1152 


NEGLIGENCE. 


200G 


clined  the  services  of  the  bell  boy,  which  were  proffered.  Arri\nng 
at  the  end  of  the  hall,  where  the  room  was  situated,  ]\I.,  by 
mistake,  opened  a  door  which  led  into  an  elevator  opening.  It 
was  at  night,  and  the  hall  was  dimly  lighted.  M.,  not  discorn- 
ing  his  mistake, stepped  through  the  door,  intending  to  strike  a 
match  and  light  the  room,  when  he  fell  to  the  basement,  rccoiv- 
ing  severe  injuries.  Held.,  that  the  conduct  of  the  hotel-ki'eper 
in  permitting  the  dangerous  opening  to  remain  unguarded 
amounted  to  gross  negligence,  and  that  M.  could  recover:  llnj. 
wardw.  Merrill,  94  111.  349;  34  Am.  Rep.  229.  P.  having  oc- 
casion to  carry  an  advertisement  to  the  defendant  for  publication 
in  its  newspaper  late  at  night,  found  the  counting-room  closed. 
He  thereupon  proceeded  to  the  editorial  rooms,  on  the  second 
floor.  At  the  head  of  the  stairs  there  was  a  hall;  on  the  right 
hand,  the  door  leading  to  the  editorial  rooms;  and  on  the  left,  an 
elevator  entrance  with  folding  doors.  P.,  being  a  stranger  lo 
the  premises,  and  the  hall  being  dark,  in  trying  to  find  his  way 
fell  down  the  elevator  way,  the  doors  of  which  had  been  left 
open,  and  was  seriously  injured.  Held,  that  his  want  of  care 
and  prudence  having  caused  the  injury,  he  could  not  recover: 
Parker  v.  Portland  Publishing  Co.,  69  Me.  173;  31  Am.  Rep.  2()2. 


§  1152.    Proprietors  of  Places  of  Public  Resort.— A 

person  who  causes  a  building  to  be  erected  for  viewing  a 
public  exhibition,  and  who  admits  persons  on  the  pay- 
ment of  money,  assumes  an  obligation  analogous  to  that 
of  a  carrier  towards  a  passenger.  There  is  an  implied 
warranty  of  care,  not  only  on  bis  part,  but  on  that  of  any 
contractor  or  person  who  has  erected  the  building  or 
stand  to  which  the  public  has  been  invited.^  A  person 
in  letting  his  hall  for  a  public  purpose  holds  out  to  the 
public  that  it  is  safe,  and  he  is  bound  to  exercise  proper 
care  in  providing  safe  arrangements  for  entrance  and 
departure  to  those  invited  thereto.'^  So  a  religious  society 
giving  public  notice  of  a  meeting  to  be  held  at  its  cliureh, 
and  inviting  members  of  other  societies  to  attend,  is  liable 


'  1  Thompson  on  Negligence,  ,311; 
Francis  v.  Cockrell,  L.  ll.  5  Q.  B.  184, 
501 ;  Brazier  t'.  Polytechnic  Institution, 
1  Fost.  &  F.  507;  Pike  v.  Polytechnic 
Institution,  1  Fost.  &  F.  712;  Brown 
V.  Kennebec  Agricultural  Society,  47 
Me.  1275;  Latham  v.  Koach,  72  111.  179; 


9 


Frankfort  Bridge  Co.  v.  Williai  is 
Dana,  403;  35  Am.  Dec.  155;  C'linieic, 
Boston  Ass'n,  135  Mass.  414.  i'luiim, 
Brown  v.  Kennebec  Soc,  47  ^Ic.  L'JJ. 
•^  Camp  V.  Wood,  76  N.  Y.  '.'•_';  ;J2 
Am.  Rep.  282;  Currier  r.  Boston  Ass'n, 
135  Mass.  414. 


2007 


INJURIES   ON   EEAL  PROPERTY. 


§  1152 


to  one  so  invited  and  attending  for  a  pereonal  injury  sus- 
tained by  him  by  means  of  the  dangerous  condition  of 
the  premises/  But  the  proprietor  of  a  jiublic  building  or 
structure  is  not  a  warrantor  or  insurer  that  it  is  abso- 
lutely safe,  but  he  impliedly  warrants  that  it  is  safe  for  the 
purpose  intended,  save  only  as  to  those  defects  which  are 
unseen,  unknown,  and  undiscoverable.''  Hence  such  a 
person  is  not  responsible  for  latent  defects  in  a  staircase, 
whether  in  its  construction  or  material,  at  the  time  he 
took  the  building,  but  is  only  responsible  for  a  want  of 
duo  care  in  failing  to  keep  it  in  a  reasonably  safe  condi- 
tion, and  is  liable  for  repairing  it  in  an  improper  manner, 
which  tended  to  weaken  it;*  and  it  is  a  proper  question 
for  the  jury  whether  the  proprietor  had  employed  proper 
persons  to  make  the  alterations,  and  whether  these  persons 
had  employed  proper  care  and  skill.^ 

Illustrations.  —  The  plaintiff  hsrd  been  attending  a  ball  at 
a  i)ublic  hall  in  the  third  story  of  an  inn,  and  on  coming  away, 
instead  of  descending  two  flights  of  stairs,  went  out  of  a  door 
left  unlocked  at  the  foot  of  the  upper  flight,  and  opening  upon 
the  roof  of  a  piazza,  and  walking  along  the  piazza  roof,  stepped 
ofi'  the  unguarded  end  of  it,  and  fell  to  the  ground.  Held,  that 
the  innkeeper  was  liable:  Camp  v.  Wood,  76  N.  Y.  92;  32  Am. 
Rep.  282.  Proprietors  of  a  fair-ground  charging  an  admission 
had  allotted  a  portion  of  the  grounds  for  target-shooting,  but 
giive  no  notice  thereof.  Plaintifl^'s  horse,  hitched  where  others 
n-tre  hitched,  was  shot.  Held,  that  they  were  liable:  Con- 
rwlt  V.  Clmive,  93  Ind.  47G;  47  Am.  Rep.  388.  Defendant 
owned  pleasure-grounds  on  which  was  a  hotel.  A  largo  num- 
ber of  people  occupied  the  grounds  one  day  on  the  oeeasion  of 
a  public  meeting  and  celebration,  and  many  of  them  were  en- 
tertained at  the  hotel.  During  the  afternoon  a  sudden  and 
violent  storm  arose,  and  many  people  suddenly  crowded  upon 
the  hotel  piazza  for  shelter.  The  piazza,  which  was  strong 
enough  for  ordinary  uses,  broke  down,  and  plaintiff"  was  injured. 
//'/'/,  that  he  could  not  maintain  an  action:  Convese  v.  Walker, 
30  Hun,  596.     Plaintiff"  fell  and  was  injured  while  going  from 

'  Davis?'.  Cong.  Soc,  129 Mass. 367;  ^  Pike  v.  Polytechnic  Institution,  1 

37  Am.  Rep.  3158.  Fost.  &  F.  712. 

■  I'Vuucia  V,  Cockrell,  L.  R.  5  Q.  B.  *  Brazier  v.  Polytechnic  luatitution, 

184,  uOl.  1  Fost.  &  F.  507. 


§1153 


NEGLIGENCE. 


2008 


defendant's  n;eeting-hou8e  after  dark  by  a  path  eighteen  feet 
wide,  bounded  by  a  wall  eight  inchcH  above  the  path  at  the 
point  where  plaintiff  fell,  a  street  being  on  the  other  side  of  the 
wall  two  feet  below  the  level  of  the  path.  The  path  was  insulli- 
ciently  lighted,  and  plaintiff  did  not  see  the  wall.  Held,  that 
the  questions  of  whether  plaintiff  was  in  the  exercise  of  due 
care,  and  whether  the  way  was  reasonably  safe,  were  for  the 
jury:  Davis  v.  Cent.  Cong.  Soc,  129  ^lass.  367;  37  Am.  Hop. 
3G8.  The  marshal  of  a  county  fair  turned  A's  horse  from  tlio 
track  to  clear  it  for  a  race,  and  in  doing  so  the  horse  broke  loose 
and  injured  plaintiff.  Held,  that  instructions  that  the  marshal 
was  not  liable  unless  his  act  was  one  "which  a  person  thus  act- 
ing must  have  adjudged  would,  in  the  natural  course  of  events." 
cause  the  injury,  were  erroneous,  as  ho  was  liable  if  he  negli- 
gently  turned  the  team  oflf  the  track,  and  A  thereby  lost  control 
of  it  and  broke  loose  and  caused  the  injury:  Stevens  v.  Dudlcj, 
56  Vt.  158. 


§  1153.  Railroad  Stations— Vessels  —Wharves— Toll- 
bridges. — The  principles  of  the  last  section  apply  to  per- 
sons,  whether  passengers  or  others,  resorting  to  railroad 
stations.'  The  owner  of  a  vessel  is  not  bound  to  close 
the  hatches  at  night,  so  as  to  protect  from  injury  a  tres- 
passer, or  one  who  has  no  right  or  license  to  be  on  tlie 
vessel.'^  While  one  on  a  vessel  lying  outside  of  another 
vessel  at  a  wharf  has  a  right  to  cross  such  other  vessel,  lie 
cannot  recover  for  an  injury  sustained  by  falling  through 
a  hatch-cover,  the  deck  furnishing  a  safe  passage.'  But 
when,  in  the  discharge  of  his  duty,  a  man  tumbled 
down  an  unlighted  open  hatchway  in  a  dark  passage, 
it  was  held  that  the  ship  was  liable.*  The  proprietors  or 
lessees  of  public  wharves  and  piers  are  held  to  the  same 
degree  of  care  as  attaches  to  carriers  of  passengers  in  case 


'  Aa  to  which,  seepos^,  Division  III., 
Bailinonta  —  Carriers;  Toledo  etc.  R. 
II.  Co.  V.  Grush,  67  111.  262;  16  Am. 
Rep.  618;  Carpenter  v.  R.  R.  Co.,  97 
N.  Y.  494;  49  Am.  Rep.  540;  Snow  v. 
R.  R.  Co.,  136  Mass.  552;  49  Am. 
Rep.  40.  A  railroad  company,  the 
lessor  of  land  leased  for  the  purpose  of 
keeping  a  hotel  thereon,  is  not  liable 
for  an  injury  caused  by  a  defective 
step  or  platform  and  aa  insufficient 


light,  to  one  who  was  going  from  the 
railroad  platform  to  the  hotel:  Texas 
etc.  R.  R.  Co.  V.  Mangum,  68  Tex. 
342. 

^  Baker  v.  Byrne,  58  Barb.  4;)S; 
Severy  v.  Nickerson,  120  Mass.  30(3; 
2]  Am.  Rep.  514. 

'  Anderson  v.  Scully,  31  Fed.  Rep. 
101. 

*  The  GuiUermo,  26  Fed.  Rep.  9-'l. 


200S 


2009 


INJURIES    ON   REAL    PROPERTY. 


§1153 


en  feet 
at  the 
3  of  the 
iiigulU- 
Id,  that 
of  due 
for  the 
n.  Rep. 
I'ovn  the 
ko  loose 
marshal 
lius  act- 
events." 
le  nogli- 
t  control 
Dudley, 


J— Toll- 

y  to  per- 
railroad 
to  close 
y  a  tros- 
e  on  the 
another 
essel,  he 
through 
e.*     But 
tumbled 
passage, 
ietors  or 
he  same 
in  case 

ig  from  the 
fotel:  Texas 
68  Tex. 

iBarb.  «8; 

I  Mass.  'M; 

Fed.  IlL'p. 
Rei).  Oil. 


of  an  injury,  through  non-repair  or  other  negligence,  to 
any  person  coming  thereon  upon  lawful  business.'  A 
dock-owner  who,  for  a  reward  paid  him  by  a  ship-owner, 
supplies  a  dock  and  a  gangway  to  enable  persons  to  pass 
to  and  fro  betv/een  the  land  and  the  ship  is  answerable 
in  damages  to  any  person  who,  having  occasion  to  go  on 
board  the  ship  on  business,  is  injured  by  the  negligence 
of  the  dock-owner's  servants  in  removing  or  placing  the 
gangway  in  an  insecure  position,  though  he  might  not  bo 
so  answerable  to  a  mere  volunteer  going  on  board  the 
ship  without  lawful  business.'*  A  city  which  is  the  owner 
of  and  controls  a  wharf,  and  collects  tolls  for  the  use 
thereof,  is  liable  to  an  action  for  damages  by  the  owners 
of  a  vessel  which  was  destroyed  by  reason  of  the  city  au- 
thorities permitting  a  large  quantity  of  pig-iron  to  remain 
upon  the  wharf  an  improper  length  of  time,  thereby  caus- 
ing the  plaintiff's  boat  to  be  backed  out  into  the  stream, 
in  consequence  of  which  it  was  rua  into  and  sunk.'  This 
liability  attaches  to  the  person  in  actual  possession  of  the 
wliarf,  irrespective  of  the  question  of  ownership.*  Such 
a  liability  rests  upon  a  lessee  who  is  under  covenants  to 
repair,  and  who  has  the  right  to  collect  wharfage,  al- 
though he  may  not  have  the  exclusive  possession.*    And 


'  1  Tliompsou  on  Negligence,  316; 
C'arlctou  p.  Franconia  Iron  Co.,  99 
Mass.  'JIG;  Caiinavan  v.  Conklin,  1 
Daly,  509;  1  Alib.  Pr.,  N.  S.,  271; 
Railway  v.  Briggs,  35  How.  Pr.  422; 
37  N.  Y.  250;  Moody  v.  Now  York, 
34  How.  Pr.  288;  43  Barb.  282; 
Swords  V.  Edgar,  59  N.  Y.  28;  1 
Thomp.  &  C.  23;  44  How,  Pr.  139;  17 
Am.  licit.  2<)5;  Wendell  v.  Baxter,  12 
Gray,  404;  Campbell  v.  Portland 
Siif;ar  Co.,  02  Me.  552;  16  Am.  Rep. 
503;  Barrett  v.  Black,  56  Me.  498;  96 
Am.  Dec.  497;  Railroad  Co.  v.  Han- 
niiig,  15  Wall.  649;  Macauley  v.  New 
York,  (i7  N.  Y.  002;  Smith  v.  London 
etc.  Docks  Co.,  L.  R.  3  Com.  P.  .326; 
BucklHor.  Brown,  21  Wend.  110,  116; 
Pittsburgh  V.  Grier,  22  Pa.  St.  54;  60 
Am.  Dec.  05;  Penasylvaoia  R.  R,  Co. 


V.  Atha,  22  Fed.  Rep.  020.  So  where 
the  wharf  is  kept  by  a  immicipal  cor- 
poration for  profit:  Pittsburgh?'.  Orier, 
22  Pa.  St.  54;  00  Am.  Doe.  05;  Maxwell 
V.  Philadelphia,  7  Piiila.  137;  MeGuin- 
eaa  v.  New  York,  52  How.  Pr.  450; 
Moody  V.  New  York,  43  Barb.  282;  34 
How.  Pr.  288;  Taylor  r.  New  York,  4 
E.  D.  Smith,  559;  Biickboo  ?-.  Brown, 
21  Wend.  110;  Macauley  i-.  New  York, 
67  N.  Y.  602. 

*  Smith  V.  London  etc.  Docks  Co., 
L.  R.  3  Com.  P.  326. 

»  Pittsburgh  v.  Gricr,  22  Pa.  St.  54; 
60  Am.  Dec.  65. 

*  Cannavau  v.  Couklin,  1  Daly, 
509. 

*  Radway  v.  Briggs,  37  N.  Y.  256; 
35  How.  Pr.  422;  Campbell  v.  Sugar 
Co.,  62  Mo.  652;  16  Am.  Rep.  503. 


§1153 


NEOLiaENCE. 


2010 


if  the  defect  existed  when  the  lease  was  made,  a  covenant 
by  the  lessee  to  repair  will  not  relieve  the  lessor  from  lia- 
bility.* Still  a  lessor  who  has  let  a  wharf  and  slip,  and 
delivered  exclusive  possession  to  a  lessee  who  covenants 
to  repair,  is  not  liable  for  damages  that  happen  throuirh 
obstructions  that  arise  suboequently,  of  which  the  lessor 
has  no  notice.'' 

And  the  same  liability  attaches  to  the  keepers  of  toll- 
bridges.^  If  the  proprietor  of  a  toll-bridge  knows  of  a 
defect  therein  dangerous  to  passengers,  and  not  exposed, 
and  takes  toll  from  a  passenger,  and  allows  him  to  cross 
without  wnrni'  '^9  proprietor  is  liable  for  damages; 
aliter,  if  the  c!.  '•  t  '  .  not  dangerous  and  likely  to  result 
in  damage,  but  in  ihe  judgment  of  the  proprietor  slifjlit, 
and  thought  .  have  been  safely  repaired;  for  the  j>ro- 
prietor  of  a  bridge  is  ouiy  lifble  for  ordinary  care  and 
diligence,  and  beyond  this  is  not  an  insurer.'*  A  bridge 
company  is  not  liable  for  an  injury  received  by  a  foot- 
passenger  before  nine  o'clock  in  the  morning,  occasioned 
by  tho  freezing  of  rain  that  had  fallen  on  the  sidewalk 
the  previous  night.**  But  it  should  provide  increased 
guards  against  new  dangers  caused  by  the  use  of  its 
property  for  the  purpose  of  a  railroad,  whether  it  per- 
mitted the  railroad  company  the  use  of  the  bridge  or  it 
had  been  condemned  for  such  use." 

Illustrations.  —  The  plaintiff,  without  invitation  or  h\m- 
ness,  intruded  upon  a  visibly  ruinous  but  unincloscd  fnight- 
house  of  the  defendants,  used  only  for  storage,  and  while  tliorc, 
a  sudden  storm  l)lew  a  fragment  of  the  building  upon  and  him 
injured  him.  Held,  that  he  was  remediless:  Ldry  v.  /'.  11.  f'n., 
78  Ind.  323;  41  Am.  Rep.  572.     A  customs  officer,  serching  fora 


•  Swords  V.  Edgar,  59  N.  Y.  28;  17 
Am.  Rep.  295;  Moody  v.  New  York, 
i:\  liaib.  282;  34  How.  Pr.  288;  Albert 
V.  State,  66  Md.  325;  59  Am.  Rep. 
151). 

'■*  Moore  v.  Oceanic  Steam  Nav.  Co., 
24  Fod.  Hop.  237. 

'  Frankfort  Bridge  Co.  v.  Williams, 


9  Dana,  403;  35  Am.  Dec.  155;  Town- 
send  V.  Turnpike  Co.,  6  Johns.  DO. 

*  Stokes  V.  Tift,  64  Ga.  312;  :!7  Am. 
Rep.  75. 

^  Evers  v.  Hudson  River  Briilire  Co., 
18  Hun,  144. 

"  Peoria  Bridge  Ass'n  v.  Loomis,  20 
lU.  535;  71  Am.  Dec.  263. 


2010 


2011 


INJUKIES  ON  REAL  PROPEHTY. 


§  1153 


5  V  en  ant 
rom  lia- 
lip,  luid 
ivonants 
through 
le  lessor 

9  of  toll- 
lows  of  a 
exposed, 
i  to  cross 
(.hunuges; 
r  to  result 
.or  sli^'ht, 
'  the  pro- 
care  and 
A  hridge 
\)y  a  foot- 
occasioned 
e  sidewalk 
increased 
use  of  its 
ler  it  per- 
»ridge  or  it 


nn  or  Imsi- 
sed  fr.'igW- 
,vhile  tboiT, 
on  and  liim 

:.  n.  n.  Co., 

rching  fora 

2C.  15');  T'"*'^" 
,  Jolins.  IH). 
.  312;  U7  Am. 

Ler  Bridge  Co., 

\\  V.  Loomia,  20 
163. 


snuigglers  at  a  wharf  whore  foreign  vessels  discliarged,  having 
III)  lantern,  fell  into  the  water   through  an  cpciiing  loft  un- 
guarded and  unlighted  in   the  wharf  hy  the  owner,  and  was 
injured.     Held,  that  he  could  maintain  an  action  therefor:  Low 
V.  n.  R.  Co.,  72  Me.  313;   39  Am.  Rep.  331.     At  the  time  the 
New  York  and  Brooklyn  bridge  was  opened  for  travel,  plaintiff, 
in  attempting  to  cross,  was  caught  in  a  crowd,  thrown  down, 
trampled  on,  and  injured.     A  large  force  of  policemen  had  been 
employed  to  preserve  order,  and  the  rush  could  not  reasonably 
have  been  anticipated.     Held,  that  an  action  against  the  bridge 
trustees  could  not  bo  maintained:  Ilannon  v.  Agiirw,  9G  N.  Y. 
4'jil.    A  coal  merchant  after  obtaining  from  the  owner  exclu- 
sive use  of  a  wharf  and  slip  for  which  he  paid  a  fixed  price  for 
all  coal  sold  and  shipped  therefrom,  was  notified  of  a  sunken 
pile  as  a  dangerous  obtruction   near   the  pier.     Jlcid,  that  he 
was  liable  for  subsequent  damages  therefrom  to  a  vessel  which 
his  superintendent  had  directed  to  move  from  the  spot;  and  this, 
notwithstanding  any  proved  liability  of  the  wharf-owner:    On- 
dcrdoiilc  V.  Smith,  21  Fed.  Rep.  588.     In  an  action  to  recover  of 
a  railroad  company  for  a  horse  and  cart  lost  by  falling  into  a 
river  through  alleged  negligence  of  the  company  in  not  provid- 
ing cap-logs  for  its  pier,  held,  that  the  company  might  show 
that  such  logs  would  interfere  with  the  loading  of  vessels  in  tho 
course  of  its  business:  Philadelphia  etc.  R.  R.  Co.  v.  Ervin,  89 
Pa.  St.  71;   33  Am.  Rep.  726.     Plaintiff,  the   driver  of  a  job- 
wagon,  was  injured  by  stepping  into  a  hole  in  a  wharf  while 
attempting  to  carry  a  seaman's  chest  on  board  a  vessel.     The 
part  of  the  wharf  where  the  accident  occurred  Avas  leased  to  A 
and  B  by  the  agents  of  the  owners  of  the  wharf  for  the  purpose 
of  loading  and  dispatching  vessels,  the  agents  being  bound  to 
repair.     Persons  going  to  the  vessel  were  compelled  by  obstruc- 
tions in  other  parts  of  the  wharf  to  take  tho  route  which  plain- 
tiff took,  which  was  through  a  shed.     Held,  that  tho  owners  and 
agents  were  liable  for  the  injury:  Campbell  v.  Siifjar  Co.,  62  Me. 
552;  16  Am.  Rep.  503.     A  was  killed  by  falling  through  a  pier 
of  the  defendants,  which  was  in  a  decayed  and  unsafe  condition. 
The  pier  was  at  the  time  leased  to  a  person  who  had  covenanted 
to  keep  it  in  good  order  and  repair.     The  pier  was  in  such  a  con- 
dition, at  the  time  of  the  demise  and  delivery  of  possession  to 
the  lessee,  that  the  owners  knew,  or  were  properly  chargeable 
with  knowledge,  of  its   dangerous  character.     Held,  that  tho 
owners  were  liable:  Swords  v.  Edgar,  59  N.  Y.  28;  17  Am.  Rep. 
29.5.    A  wharf  extended  outward  below  the  water-line.    A  spike 
projected,  which  injured  a  vessel.     Held,  that  prima  facie  tho 
lei^see  and  occupant  of  the  wharf  was  chargeable  with  negli- 
gence:  Smith  V.  Havemeyer,  32  Fed.  Rep.  844.     A,  by  devise, 
became  the  owner  of  a  wharf  subject  to  a  lease  which  did  not 


§1154 


NEGLIGENCE. 


2012 


rcqiure  the  lessor  to  repair,  but  whicb  authorized  him  to  do  sn. 
Held,  that  A  was  liuljle  for  personal  injuries  sustained  liy  ;i 
Btranger  by  reason  of  a  defect  in  the  wharf:  Ahem  v.  Steele,  'IS 
Hun,  517.  A,  knowing  of  a  defect  in  his  wharf,  let  it  to  li,  win; 
after  learning  of  the  defect,  continued  to  use  it  as  a  public  n- 
sort.  FTchl,  that  for  a  personal  injury  sustained  from  tlic  de- 
fect, A  and  15  were  jointly  liable:  Joyce  v.  Martin,  15  R.  I.  ooS. 

§  1154.  Injuries  to  Third  Persons  from  Defective 
Condition  of  Leased  Property  —  When  Lessor  and  v/hen 
Lessee  Liable.  —  By  the  commoii  law,  the  occupier,  and 
not  the  landlord,  is  bound,  as  between  himself  uiid  the 
public,  so  far  to  keep  the  premises  in  repair  that  they 
may  be  safe  for  the  i:)ublic,  and  such  occupier  is  prima 
facie  liable  to  third  persons  for  damages  arising  from  any 
defect.* 

But   the    landlord   is   liable   in   two   cases:   1.   Where 


1  Toddr.  Flight,  OCom.  B., N.  S.,  377; 
Payno  r.  Rdgcra,  2  JI.  black.  350; 
Regiiia  v.  Watts,  1  Salk.  357;  Regiua 
V.  Watiion,  12  Lil.  Ray  in.  850;  3  Ld. 
Raym.  IS;  Russell  r.  Shcnton,  3 
Q.  B.  449;  Boylo  v.  Tamlyii,  G  Barn. 
&  C.  ?,'2'3;  Bent  v.  Hadaoii,  Cro.  Jac. 
555;  Bi'oder  ?\  8aillard,  2  Cli.  Div. 
69i);  Cuupland  v.  llardiiigliam,  3 
Camp.  398;  Nelson  r.  Liverpool  Brew- 
ery Co.,  2  Co::i.  V.  Div.  311;  Tarry  v. 
Aahton,  1  Q.  B.  Div.  314;  O'Brien  v. 
Capwell,  59  Barb.  497;  Shiiidelbcck  v. 
Moon,  32  Oliio  8t.  2J4;  3J  Am.  Rep. 
5S4;  Cliauutler  v.  Robinson,  4  Ex.  1G3; 
Bishop  V.  Bedford  Charity,  1  El.  &  E. 
697;  Kast'iv  ^i.  Newhouse,  4  E.  D. 
Smith,  20;  Gridlcy  r.  Bloomiiigtou, 
G8  111.  47;  Blunt  v.  Aikin,  15  Wend, 
522;  30  Am.  Dec.  72;  New  York  v.  Cor- 
liss, 2  Sand.  303;  Jaffo  v.  Harteau,  50 
N.  Y.  398;  15  Atn.  Rop.  438;  Fisher 
V.  Thirkell,  21  Mich.  1;  4  Am.  Rep. 
422;  City  of  Lowell  v.  Spauldiu;:^,  4 
Cush.  277;  50  Am.  Dec.  775;  Dwinel 
r.  Veazio,  44  Me.  1G7;  G9  Am.  Dec. 
94;  Union  Brass  Co.  v.  Lindsay,  10 
111.  App.  583.  A  clause  in  lease  of  a 
farm  and  ferry  making  lessee  liable  to 
the  lessor  "  for  all  damage  occasioned 
by  willful  misconduct  or  neglect  in  the 
management  of  the  farm  and  premises 
and  in  the  manaf;ement  of  the  ferry 
aud  boat "  applies  only  to  such  dam- 


ages as  might  result  to  the  lessor'.^  re- 
versionary interest  from  tin;  iiii.^cou- 
duct  or  neglect  of  the  lessee,  but  do. -j 
not  render  the  lessor  liable  ior  iiijuiiLj 
done  by  the  lessee  to  third  pcrsmn; 
Feltonv.  Deall,22  Vt.  170; 54  Am.  Do;. 
Gl.  Thus  a  landlord  is  not  lialilc;  inr 
an  injury  to  an  invited  guest  of  t!ie 
tenant:  Marshall  v.  Heard,  59  Ti..v. 
2GG;  or  for  an  injury  by  the  fiJ.l  df  ;iu 
awning  intended  solely  as  aprooec.iiv.i 
against  sun  and  rain,  the  fall  li:iv,:]g 
been  occasioned  by  the  tcnant'.-j  iii;.;li- 
gent  conduct  in  permitting'  a  ci'dwd 
of  people  to  stand  upon  it:  Kalis  r. 
Shattuck,  G9  Cal.  5G3;  5S  A;.i.  Kq). 
5G8.  The  owner  of  a  buildiii ,'  wit!i  a 
roof  so  constructed  that  snfiw  aiul  ice 
collecting  on  it  from  natur;d  c:iii:s;.-3 
will  uaturally  aud  probably  fall  into 
the  adjoining  highway  is  not  liaMc  to 
a  person  injured  by  such  a  f  dl  ii[iiin 
him,  while  traveling  upon  thu  liiuli- 
way  with  due  care,  if  the  entire  buiM- 
ing  is  at  the  time  lot  to  a  tenant  uho 
has  covenated  with  the  ov.ncr  "to 
make  all  needful  and  proper  ri'piiivs 
both  internal  and  external,"  it  n  it  ap- 
pearing that  the  tenant  mi^lit  ii.t 
have  cleared  the  roof  of  snow  liy  tlio 
exercise  of  due  care,  or  that  hj  coall 
not  by  iiropcr  precaution  have  pre- 
vented the  accident:  Leonard  ;•.  Stai'cr, 
115  Mass.  86;  L5  Am.  Rep.  7ti. 


2013 


INJURIES   ON    REAL    PUOPEUTY. 


§1154 


there  is  an  express  agreement  between  the  landlord  and 
llie  tenant  that  the  former  shall  keep  tho  premises  in  re- 
pair, so  that,  in  case  of  a  recovery  against  tho  tenant,  the 
latter  would  have  his  remedy  over  against  tho  landlord, 
then,  1o  avoid  circuity  of  action,  tho  party  injured  hy  the 
ilefec't  and  want  of  repair  may  have  his  action  in  the  first 
instance  against  the  landlord.*  A  landlord  who  has  cov- 
enanted to  repair,  but  who  has  not  been  notified  hy  his 
tenant  to  repair,  is  not  liable  for  injuries  sustained  by  a 
stranger  upon  tho  premises  at  the  invitation  of  tho  ten- 
ant, although  such  injuries  are  tho  result  of  a  failure  to 
repair.'' 

2.  Where  the  promises  were  in  a  defective  condition 
at  the  time  of  tho  making  of  tho  lease,"  a  lessor  out  of 
possession  is  liable  to  a  third  person  for  the  continuance 
by  his  tenant  of  a  nuisance  arising  from  a  privy-well  and 


'  Todd  V.  Flight,  9Com.  B., N.  S.,  377; 
Payiior.  Rogers,  211.  Black,  350;  Nel- 
son r.  Liverpool  Brewery  Co. ,  2  Com.  P. 
Div.  1^13;  Lowell?,'.  Spaulding,  4  Cush. 
'27S;  50  AiTi.  Dec.  775;  Benson  v.  Suarez. 
43  Barl).  40S;  Clancy  v.  Byrne,  5Q  N, 
Y.  129;  15  Am.  Rep.  301;  Gridley  i>. 
Blooinington,  C8  111.  51;  Whalen  v. 
Gloucester,  GThomp.  &C.  24.  A  prom- 
ise t>>  rcp:iir  leased  promises  made  by  a 
liuiiUorl  who  is  under  no  legal  obliga- 
tion to  make  repairs  is  withont  consid- 
eration, and  cannot  support  an  action. 
Libbey  r.  Tolford,  48  Me.  31G;  77  Am. 
Doc.  '2-:9. 

^Plocu  V.  Stafif,  9  Mo.  App.  309. 

' lloscwelln  Prior,  2  Salk.  459;  12 
Mod.  Coo;  Staple  v.  Spring,  10  Mass. 
''2;  W;ij;goner  v.  Jermaine,  3  Denio, 
30lj;  45  Am.  Dec.  474;  Irvine  v.  Wood, 
51  N.  Y.  228;  10  Am.  Rep.  G03; 
Stepliani  r.  Brown,  40  111.  428;  Moody 
r.  New  York,  43  Barb.  282;  34  How. 
Pr.  '288;  Durant  v.  Palmer,  29  N.  J. 
L.  544;  iScott  v.  Simons,  54  N.  H. 
420;  Ilciclienbacher  v.  Pahmeycr,  8 
111.  App.  217;  Center  v.  Davis,  39 
Ga.  '210.  And  this  rule  is  appli- 
cable to  the  successor  to  tho  title 
ami  possession  of  property  who  omits 
to  abate  a  nuisance  erected  thereon 
by  auotlicr:  Brown  v.  R.  R.  Ca,  L2 


N.  Y.  4SG;  Pillsbury  v.  Moore,  44 
Me.  154;  G9  Am.  Doc.  91;  but 
SCO  Leonard  i\  Storcr,  115  Mass.  8G; 
15  Am.  Rep.  7G;  (trinnell  r.  Earner, 
L.  R.  10  Com.  P.  G58;  Petty  v. 
Bickmore,  L.  R.  8  Com.  P.  401.  One 
who  peruiits  an  old  and  decayed  plank 
sidewalk  to  remain  along  one  side  of 
a  private  way  in  tho  rear  of  premises 
which  ho  has  luasud  is  not  liable  to 
one  sustaining  injury  from  the  defect- 
ive condition  of  tho  sidewalk:  Birn- 
baum?'.  Crowuinshield,  l.'}7  Mass.  177. 
Tho  lessor  of  a  building  is  not  liable 
to  one  who,  in  passing  along  a  walk 
leading  from  tho  street  to  the  building, 
for  the  purpose  of  transacting  business 
with  the  tcMuiut,  is  injured  by  falling 
down  an  unfencod  adjoining  endmnk- 
mcut,  although  the  premises  were  ia 
that  condition  prior  to  the  letting: 
Mellon  V.  Morrill,  12G  Mass.  545;  30 
Am.  Rej).  G'.)5.  In  order  that  a  laud- 
lord  be  liable  to  a  third  person  who, 
on  calling  to  visit  a  tenant,  receives 
an  injury  from  a  hole  in  the  oil-cloth 
on  the  stairs  of  the  tenement,  it  is 
necessary  that  knowledge  of  the  de- 
fect should  have  been  brought  home 
to  the  landlord:  Heukel  v.  Murr,  31 
Hun,  28. 


§1154 


NEOUQENCE. 


201-1 


private  sower,  which  were  defectively  constructed  or  out 
of  repair  when  the  premises  were  leased.*  The  landloi(l, 
and  not  the  tenant,  is  liable  for  injuries  caused  by  neglect 
to  repair  a  building  abutting  on  a  highway,  and  to  keep  it 
in  safe  condition  for  passers-by,  whore  he  is  bound  to  iiiako 
necessary  repairs,  and  has  the  control  of  the  outside 
doors  and  passage-ways  for  that  purpose,  and  keeps  the 
keys,  and  opens  and  closes  the  doors  at  certain  hours 
fixed  by  the  tenant.'*  But  m  order  that  the  person  who 
has  erected  a  nuisance  shall  be  liable  for  its  continuance 
after  he  has  parted  with  the  possession  of  the  premises 
whereon  it  exists,  it  is  necessary  that  he  should  derive 
some  profit  from  its  continuance,  as  by  the  receipt  of 
rent,*  or  that  the  property  be  conveyed  with  covenants 
for  the  continuance  of  the  nuisance.*  An  agreement 
between  joint  lessees  of  property  that  one  of  them  shall 
keep  the  premises  in  repair  is  no  defense  to  an  action 
against  the  other  for  damages  arising  from  non-repair/ 
If  when  the  owner  parts  with  the  possession  and  control 
of  the  property  it  was  in  good  condition,  he  is  not  liahle 
for  the  effect  of  a  subsequent  defect  while  in  the  lessee's 
possession.*^  A  lessee  who  has  sublet  premises  in  good 
repair  at  the  time  of  such  subletting  can  claim  immunity, 
as  well  as  the  owner  of  the  premises,  from  liability  to 
respond  in  damages  for  the  occurrence  of  an  accident 
resulting  from  the  defective  condition  of  the  premises 
during  the  possession  of  the  sublessee,  and  that,  too, 
although  he  (the  original  lessee)  covenanted  with  the 
owner  to  keep  the  premises  in  repair.^  But  if  a  lessee 
sublets  premises  out  of  repair,  he  will  be  held  liable  as  it 
he  were  the  owner  or  author  of  the  nuisance.^ 


>  Kuauss  V.  Brua,  107  Pa.  St.  85. 

*  Kirby  ?\  Boylstou  etc.  Ass'n,  14 
Gray,  249;  74  Am.  Dec.  682;  Read- 
man  V.  Conway,  126  Mass.  374. 

*  Rose  well  v.  Prior,  12  Mod.  635. 

*  Waggoner  v.  Jermaine,  3  Denio, 
306;  45  Am.  Dec.  467;  Albany  v.  Cun- 
liff,  2  N.  Y.  IT-i;  Uanse  v.  Cowing,  1 
Laaa.  288. 


*  Cannavan  v.  Conklin,  1  D;ilv, 
509. 

"  St.  Louis  V.  Kaimc,  2  Mo.  App.  liO; 
Ditchett  V.  R.  R.  Co.,  67  N.  Y.  i'2o. 

'  Clancy  v.  Byrne,  56  N.  Y.  l'J9;  15 
Am.  Rep.  391. 

*  Davenport  v.  Ruckman,  37  N.  Y, 
568. 


201- 


2015 


INJURIES    ON    KEAL   PROl'EUTY. 


g  1154 


or  out 
uidlonl, 

ncglt'ct 
D  keep  it 
to  muko 
1  outsiilc 
:eeps  tlio 
in  ho\u'!) 
rsou  who 
tinuiiuco 
premisfs 
Id  derive 
receipt  of 
coveiuuitd 
igreeiueut 
hem  shall 
I  an  action 
on-repair.^ 
nd  control 

not  liable 
|he  lessee's 

s  in  ^ood 
limmunity, 

.lability  to 

11  accident 

premises 

that,  too, 

with  tilt 

if  a  lessee 

lliable  as  it 

lun,   1   D«iy' 

J  Mo.  Apv-  '''^1 
b  N.  V.4i5. 

N.  Y.  r^9;  1'^ 
lan,  37  N.  V, 


A  covenant  in  a  lease  that  "no  alteration  or  addition 
shall  1)0  nuido  in  or  to  the  premises  without  the  consent 
of  the  lessor  "  does  not  relievo  the  lessee  from  liability  for 
injuries  resulting  to  a  third  person  from  want  of  repair 
of  the  premises.'     If  the  owner  has  rented  the  i)remise3 
with  tlic  knowledge  that  they  are  insuflicient  for  tlie  pur- 
j)use  for  which  they  are  designed  to  be  used,  or  under  the 
circumstances  is  properly  chargeable  with  knowledge  of 
this  fact,  he  will  be  liable  to  persons  iuj   r'^l  thereon  in 
consequence.^     A  landlord  is  under  the  same  liability  to 
the  subtenants  of  the  lessee  for  the  safety  and  sutHciency 
of  the  demised  premises  for  the  purposes  for  which  they 
are  intended  as  he  is  to  the  lessee.*     An  owner  of  a  build- 
ing who  erects  an  awning  thereon  over  a  public  street,  or 
who  allows  an  awning  erected  by  a  prior  owner  to  remain, 
under  a  license  so  to  do  from  the  city  authorities  on  con- 
dition that  the  same  be  securely  fastened,  is  liable  to  any 
one  who,  without  fault,  is  injured  through  the  owner's 
neglect  to   keep  the  awning   in  repair.     Such   liability 
exists  although  at  the  time  of  the  injury  the  building  was 
occupied  by  a  tenant.''     Where,  by  the  neglect  of  a  tenant, 
a  wutcr-pipe  and  gutter  are  stopped  up  and  form  ice,  on 
which  a  pedestrian  slips  and  is  injured,  the  tenant  is 
liable.*     So   where  by  the  negligence  of  the  tenant  in 
failing  to  secure  a  window  sash  it  falls  upon  a  passer-by, 
the  tenant  is  liable.*     A  tenant  who,  during  his  term, 
erects  an  insecure  fence  on  the  leased  premises  may  be 
hable  for  an  injury  by  its  falling  on  a  passer  in  the  street 
after  his  surrender  of  the  premises  to  the  landlord.' 

Illustrations.  — Defendant  leased  premises  to  a  tenant,  who, 
by  permission  of  the  city,  constructed  a  vault  under  the  side- 

'  Boston  I).  Worthington,  10  Gray,  ♦Jessen     v.     Sweigort,     66     Cal. 

490;  71  Am.  Doc.  678.  182. 

'  Burdick  v.   Cheadle,  26  Ohio  St.  *  Shindelbeck  v.  Moon,  .32  Ohio  St. 

397;    20  Am.    Rep.    767;    Crodley  v.  264;  .SO  Am.  Rep.  584. 

Hagerty,  20  Pa.  St.  387;  59  Am.  Dec.  ^  Qdell  v.  Solomon,  50  N.  Y.  Sup. 

7S1;  affirmed  in  Car.son  v.  Godley,  26  Ct.  119. 

Pa.  St.  Ill;  67  Am.  Dec.  404.  ^  Hussey  v.  Ryan,  64  Md.  426;  54 


Am. 


Jaffo  V.  Harteau,  50  N.  Y.  398;  16    Am.  Rep  772. 
..  Kep.  438. 


§1154 


KEGLIQENCE. 


2010 


walk  in  front,  with  a  coal-holo,  in  a  proper  and  usual  nmiirjcr. 
By  thtMvifvif^'ful  act  of  a  stranger  thostono  supporting  the  cover 
of  the  liol<'  uiiH  broken,  and  the  cover  turning  winJii  the  phiin- 
tiff  Ktep|)(  il  on  it,  he  fell  and  was  injured.  The  defendii'it  had 
no  knowicdi^o  or  notieo  of  the  defect.  Held,  that  he  was  not 
liable:  Uu//'  v.  KiJpatrirk,  101  N.  Y.  14G;  54  Am.  Ilcp.  072. 
The  owner  of  a  l)uilding  designed  and  adopted  f<ir  public  ciitcr- 
tainnients  I'aned  it  to  bo  used  for  an  entertainment  lik(  ly  U) 
crowd  tlio  building,  the  tenant  agreeing  to  make  such  eliaiif^'cs 
as  be  sliould  see  fit.  A  gallery  was  allowed  to  beoverenjwdcil, 
and  brokf  -lown.  Held,  that  one  injured  by  its  fall  eouhl  nut 
maintain  an  action  against  the  owner:  Edwards  v.  It.  li.  ('n., 
08  N.  Y.  21");  fjO  Am.  Kep.  659.  A  landlord  leased  to  .\  a 
room  which  had  open  gas-pipes  in  it,  and  afterward  lenscd 
a  lower  roouj  to  B,  and  gave  B  permission  to  introduce  gas  ii,to 
the  house.  B  introduced  the  gas.  It  escaped  through  the 
open  pipes  into  A's  room,  exploded,  and  injured  A.  Held,  ihut 
the  landlord  was  liable:  Kimmcll  v.  Burfeind,  2  Daly,  155.  The 
owner  of  a  house,  allowing  a  leader  so  to  discharge  upon  the 
sidewalk  l!i;it  a  mound  of  ice  formed,  upon  which  a  woman 
slipped  and  fell.  Held,  liable,  although  the  house  was  rented 
to  a  teniint  wliose  duty  it  was  to  remove  the  ice:  Wcnzlrr  v. 
McColtrr,  22  Ilun,  60.  The  owner  of  a  building  had  maintained 
for  eiglitccn  years  a  coal-holo  in  the  sidewalk  without  a  right 
to  do  ?o.  I'laintiff  fell  into  it  while  the  owner's  lessee  had  it 
open  for  Ihe  purpose  of  getting  in  coal.  Held,  that  the  owner 
was  liable:  Jennings  v.  Van  Schaick,  13  Daly,  438.  The  owners 
of  a  building  excavated  under  the  sidewalk  and  made  a  lioloor 
scuttle  in  the  sidewalk,  with  a  proper  cover  thereto.  They  iifter- 
ward  leased  (he  building.  During  the  lease  the  scuttle  got  out 
of  repair,  and  plaintiff,  a  passer-by  on  the  sidewalk,  was  injured 
thereby,  ndd,  that  the  owners  were  not  liable:  Fisher  v.  TInr- 
kell,  21  Mich.  1;  4  Am.  Rep.  422.  A,  without  authority  from 
the  city,  raised  the  sidewalk  several  feet  above  the  surface  of 
the  street  and  excavated  under  it,  and  placed  in  the  sidewalk 
a  grating,  in  front  of  the  window  in  the  building  adjoining. 
He  leased  the  adjacent  premises  to  another  party,  and  while 
the  tenant  was  in  possession,  a  person  who  was  passing  niong 
the  sidewalk  slipped  upon  the  grating,  which  gave  way,  and 
he  was  precipitated  into  the  area  below,  and  injured.  Hrld, 
that  A.  was  liable:  Stephani  v.  Brmvn,  40  111.  428.  Defendant, 
being  the  owner  of  a  lot  of  ground,  erected  thereon  a  storehouse, 
and  afterward  leased  the  storeroom,  and  agreed  with  the  lessee 
to  construct  therein  cornices,  shelvings,  and  fixtures,  in  a  secure, 
safe,  convenit;nt,  and  proper  manner  for  the  sale  of  dry  goods 
and  groceries,  and  to  keep  the  premises  in  good  order.  The 
fixtures  put  up  under  the  agreement  were  unsafe  and  insecure 


2017 


INJURIES  ON  REAL  PROPERTY. 


§  1155 


>  gan  iiito 
ough  the 
richl,\\\i\i 
l55.     The 
upon  the 
a  woman 
ins  rented 
Wcnzlcr  v. 
laintiiined 
^it  a  right 
CO  had  it 
the  owner 
'he  owners 
lo  a  hole  or 
Jhey  after- 
lie  gut  out 
as  injured 
[irr  V.  77uV- 
ority  from 
surface  of 
|e  f^idewalk 
adjoining. 
,and  while 
sing  i>h)ng 
I  wav,  and 
ted.  '  Ili'ld, 
iefen(hint, 
torelumse, 
the  h'ssee 
n  a  secure, 
dry  goods 
Irder.    The 
d  insecure 


from  the  want  of  sufficient  fastening  to  the  walls  of  the  building, 
all  of  wliieh  was  known  to  the  defendant,  who,  on  requoHt  of 
the  lessee,  refused  and  neglected  to  repair.  Afterward,  and 
while  the  room  and  fixtures  were  in  the  possession  of  the  lessee, 
the  shelviiigs  fell  and  injured  the  plaintill*,  who  was,  at  the  time, 
in  the  storeroom  as  a  customer  of  the  lessee.  Jlchl,  that  de- 
fiihlaiit  was  not  liable:  liurdick  v.  Cheadle,  26  Ohio  St.  393;  20 
}.         -p.  7G7. 

§  1166.    Who  are  OccnpierB — When  Landlord  Liable. 

— "Whero  parties,  having  agreed  to  become  tersuts,  moved 
upon  the  premises  before  the  execution  of  the  loiso,  and 
then  suffered  ahoist-holo  there  to  remain  open,  they  were 
held  io  1)0  occupiers  sufliciently  to  invest  them  with 
the  duty  of  guarding  against  defects  in  the  promises.' 
Even  where  the  premises  are  occupied  by  tenants,  yet  if 
the  landlord  comes  on  and  either  adopts  the  acts  of  the 
tenants  in  making  repairs  or  superintends  them,  ho  may 
bo  liable  for  injury  arising  therefrom.'^  In  an  English 
casf  \iring  the  term  of  a  lease,  butrin  the  obsence  of  the 
te  the  landlord,  under  agreement  with  the  tenant,, 

entered  the  premises  for  the  purpose  of  making  extensive 
repairs,  all  of  which  the  tenant  was  to  pay  for.  The  land- 
lord was  the  sole  judge  as  to  what  repairs  were  to  be  made, 
the  tenant  having  left  the  premises  nearly  six  months 
before  the  accident  which  gave  rise  to  this  suit.  Dur- 
ing the  progress  of  the  repairs  the  plaintiff  fell  down  a 
celhu-tloor  opening  from  these  premises  upon  the  high- 
way, which  had  been  left  open  by  the  carelessness  of  the 
landlord's  servants.  It  was  held  that  the  defendant  made 
these  repairs,  not  as  the  agent  of  the  tenant,  but  as  land- 
lord of  the  premises,  for  the  reason  that  the  repairs  were 
under  his  direction,  were  of  a  substantial  character,  and 
as  much  for  his  as  for  the  tenant's  benefit.^  The  fact  that 
the  owner  occupied  a  house  in  connection  with  several  of 
his  tenants  raises  no  presumption  of  negligence  against 


63, 


Haaley  v.  Taylor,  L.  R.  1  Com.  P. 


»  Scott  V.  Bay,  3  Md.  431. 

*  Leslie  v.  Pounds.  4  Taunt.  €49. 


127 


§1155 


NEGLIGENCE. 


2018 


him  for  an  injury  to  a  person  resulting  from  the  negli- 
gent  use  of  a  portion  of  the  premises,  which  were  prop- 
erly  constructed,  and  safe  with  ordinary  usage.^  The 
owner  of  a  mine  having  demised  the  right  to  mine  at 
a  rent  payable  on  each  ton  of  coal  taken  out,  reserving 
the  right  to  view  and  examine  the  mine,  and  to  re-enter 
on  non-payment,  neglect,  etc.,  will  be  regarded  as  a  land- 
lord; and  not  liable  for  an  injury  resulting  from  the  prose- 
cution of  the  work  by  the  tenant.'*  The  defendant,  as 
administrator  of  the  estate  of  one  of  two  mortgagees,  v/as 
held  to  be  not  liable  for  the  breaking  away  of  a  dara  wliich 
was  in  the  possession  of  third  persons,  although  such  pos- 
session was  by  virtue  of  a  verbal  agreement  with  the 
other  mortgagee,  whose  entire  interest  in  the  dam  was 
quitclaimed  to  the  defendant  previous  to  the  accident, 
and  although  the  accident  was  alleged  to  be  due  to  the 
defective  struc*  3  of  the  dam.*  But  the  owner  of  a  build- 
ing who  is  als  >  occupant  o^  part  of  it  is  liable  for  an  injury 
resulting  from  his  failure  to  keep  in  repair  an  awning 
extending  the  whole  length  of  the  building,  although 
there  be  no  agreement  between  him  and  the  tenants  of 
the  residue  of  the  building  that  he  should  keep  the  awn- 
ing in  repair.*  In  case  of  an  elevator  in  the  hall-way  of 
premises  used  by  different  tenants  in  common,  and  prop. 
erly  constructed  and  properly  protected,  the  tenants  on 
one  floor  are  not  liable  for  the  negligent  manner  of  use 
of  the  hatchway  by  the  tenants  on  one  of  the  other  floors; 
and  there  being  no  affirmative  proof  showing  specific  acts 
of  negligence  on  the  part  of  any  particular  tenant,  neither 
of  the  several  tenants  is  liable,  either  severally  or  jointly 
with  the  others,  for  injuries  resulting  from  such  acci- 
dents.^   If  the  owner  of  a  building  puts  an  elevator  into 


'  Kaiser  v.  Heith,  46  How.  Pr.  161. 

•■'  OflFertnau  v.  Starr,  2  Pa.  St.  394; 
44  Am.  Dec.  211. 

^  Oakham  v.  Holbrook,  11  Cush. 
299. 


*  Inhalritanta  of  Milford  v,  Hol- 
brook, 9  Allen,  17;  85  Am.  Dec.  73). 

*  Donnelly  v.  Jenkins,  58  How.  Pi. 
252;  9  Daly,  41;  Harris  v.  Perry,  23 
Huu,  244;  89  N.  Y.  308. 


2018 


2019 


INJURIES  ON   REAL   PROPERTY. 


§1155 


negli- 

e  prop- 

}    The 

nine  at 

iserving 

re-enter 

5  a  land- 

le  prose- 
id  ant,  as 

gees,  v;as 

im  Avliicli 

such  pos- 

with  tl\e 
dam  was 
accident, 

lue  to  tlie 

of  a  build- 

r  an  injury 

^n  awning 
altbougli 
tenants  oi 
)  the  awn- 
ball-way  of 
and  prop- 
tenants  on 
mer  of  use 
,ther  floors; 
ipecific  acts 
ut,  neither 
or  jointly 
such  acci- 
Levator  into 

tilford  V.  HoJ- 
I  Am.  L^ec.  .3i. 
Is,  58  How.  Pi„ 
^■is  V.  Terry,  2'* 

bs. 


it  for  the  convenience  of  his  tenants,  the  machinery  be- 
ing under  his  control,  he  will  be  responsible  for  an  injury 
received  by  a  person  lawfully  using  the  elevator.'     If  the 
elevator  works  unevenly,  so  that  bottles  which  one  is  send- 
ing up  under  the  direction  of  the  janitor  of  the  building 
fall  on  his  head  while  he  is  looking  up,  a  finding  that 
there  is  no  contributory  negligence  will  not  be  disturbed.^ 
A  landlord  who  lets  tenements  in  a  building  to  different 
tenants,  with  a  right  of  way  in  common  over  a  piazza  at 
the  rear,  is  bound  to  each  tenant  to  keep  the  piazza  clear 
of  ice  forming  from  water  falling  from  a  defective  pipe 
from  the  roof.'    The  owner  of  a  building  with  a  steep 
and  unguarded  roof,  ^dio  lets  it  to  a  tenant,  reserving 
only  the  right  to  ov.i^r  the  "premises  to  repair  the  same," 
is  not  liable  to  a  peiaon  injured  by  a  fall  of  snow  from 
the  roof  while  traveling  with  due  care  upon  the  adjoining 
highway,  it  not  appearing  that  the  tenant  might  not,  by 
the  use  of  reasonable  care,  have  prevented  the  accident.* 
A  landlord  is  answerable  where  an  opening  in  the  side- 
walk is  left  unguarded  by  a  janitor  in  his  employ,  who 
has  general  charge  of  the  premises  and  of  such  opening, 
though  the  building  was  rented  to  tenants  in  flats  and 
apartments,  and  the  janitor  was  also  employed  by  them 
to  deliver  coal  to  their  rooms.^ 

Illustrations.  —  Owners  Held  Liable.  —  The  plaintiff 
brought  an  action  for  injjiries  received  by  falling  upon  the 
sklcwalk  along  defendants'  premises,  whicli  was  in  an  icy  con- 
dition on  account  of  the  gutters  of  the  building  being  of  insuffi- 
cient capacity  to  conduct  the  water  from  the  roof,  and  iho  spout 
of  sucli  gutters  discharging  upon  tlio  sidewalk.  All  the  separate 
parts  of  the  building,  consisting  of  cellar:,  stalls,  and  discon- 
nectt'd  chambers,  were  leased,  either  at  will  or  for  a  term  of 
years,  to  many  different  tenants,  yet  the  defendants  had  general 
supervision  over  the  whole,  and  had  the  entire  control  of  the 

'  Stewart   v.   Harvard  College,    12  *  Clifford  v.  Atlantic  Cotton  Mills, 

Allen,  58.  146  Mass.  47. 

''  Ilittermau  v.  Ropes,  51  N.  Y.  Sup.  '•'  Jennings  v.  Van  Schaick,  108  N.  Y. 

Ct.  2.-).  630;  2  Ain.  St.  Rep.  459. 

'  Watkins  v.  Goodall,  138  Mass.  633. 


"m 


§  1155 


NEGLIGENCE. 


2020 


outside  doors  and  outside  passage-ways,  so  far  as  was  necessary 
to  enable  them  to  make  all  necessary  repairs.  Their  superin- 
tendent kept  the  key  of  the  building,  but  opened  and  closed 
the  doors  of  it  at  fixed  hours,  according  to  the  wishes  of  the  ten- 
ants. Held,  that  there  was  no  such  occupancy  by  the  tenants 
as  would  cast  upon  them  the  obligation  to  keep  the  building  in 
repair,  but  the  liability  for  injuries  to  third  persons  rested  upon 
the  owners:  Kirhy  v.  Boylston  Market  Ass'n,  14  Gray,  249;  71 
Am.  Dec.  682.  The  roof  of  a  building  was  so  constructed  as  to 
cast  snow  and  ice  upon  the  highway,  unless  the  same  was  sea- 
sonably removed.  The  whole  building  had  been  leased  to  ten- 
ants,—  the  lower  floor  and  cellar  to  one  tenant  (reserving  a 
scuttle-way),  "all  the  chamber  stories"  to  another  (reserving 
certain  rights).  There  was  nothing  in  either  lease  which  trans- 
ferred any  right  to  use  or  control  the  roof.  Each  lease  required 
the  tenant  to  keep  the  premises  leased  to  him  in  repair,  with 
the  usual  exceptions,  but  reserved  to  the  lessors  a  right  of  entry 
to  view  and  make  repairs.  Held,  that  the  leases  did  not  ex- 
clude the  lessors  from  the  roof,  or  relieve  them  from  obligation, 
as  owners,  to  remove  whatever  substances  might  accumulate 
there  and  become  a  nuisance  to  travelers  upon  the  highway: 
Shipley  v.  Fifty  Associates,  101  Mass.  251;  3  Am.  Rep.  346;  lUG 
Mass.  194;  8  Am.  Rep.  318.  An  officer,  for  the  purpose  of 
making  a  lawful  arrest,  and  at  the  request  of  the  tenant  of 
premises  which  the  landlord  was  bound  to  keep  in  repair,  en- 
tered them  in  the  night-time  and  stepped  into  an  open  well,  of 
which  there  was  no  indication,  the  well  being  in  the  natural 
and  obvious  approach.  Held,  that  the  officer  could  maintain 
an  action  against  the  landlord:  Learoyd  v.  Godfrey,  138  Muss. 
315.  Defendant  made  a  contract  with  C,  by  which  C.  was  to 
operate  defendant's  shingle-mill  during  the  milling  season,  and 
manufacture  certain  brands  of  shingles  from  logs  to  be  furnished 
by  defendant,  and  receive  payment  therefor  from  defendant  at 
fixed  rates,  and  hire  and  pay  the  men  employed,  furnish  tools 
and  implements,  repair  breaks  in  machinery  not  costing  over 
five  dollars  (larger  breaks  to  be  repaired  at  defendant's  ex- 
pense), and  load  the  shingles  at  his  own  expense  (the  defend- 
ant, however,  to  pay  such  expense  beyond  a  certain  figure  until 
a  side-track  to  the  mill  was  completed).  Defendant  was  to  put 
the  mill  in  running  order,  furnish  the  logs,  and  remove  surplus 
and  refuse  timber.  Held,  that  defendant  was  liable  for  any  de- 
fective condition  of  the  mill:  Whitney  v.  Clifford,  46  Wis.  l^iS; 
32  Am.  Rep.  703.  A's  land,  abutting  on  a  public  street,  was 
sold  to  B  under  a  power  of  sale  mortgage.  A  remained  in  pos- 
session under  an  agreement  to  pay  rent  monthly.  There  was 
a  visibly  defective  coal-hole  in  the  sidewalk.  Held,  that  1>  was 
liable  to  a  passer-by  who  fell  into  the  bole:  Dalay  v.  Savage, 


2021 


INJURIES    ON   REAL   PROPERTY. 


§1155 


145  Mass.  38.  The  wife  of  a  tenant  in  an  apartment-house 
approached  the  elevator.  The  door  was  opened  for  her  by  a 
boy  who  had  performed  the  same  service  on  other  occasions, 
but  who  was  not  shown  to  have  been  hired  by  the  owner  of  the 
house.  The  woman  stepped  in  and  fell  six  feet,  the  platform 
having  passed  up.  Held,  that  the  owner  was  liable:  Tousey  v. 
Roberts,  53  N.  Y.  Sup.  Ct.  446.  A  nuisance  was  created  by  a 
lessee  under  a  lease  by  which  he  had  covenanted  to  keep  the 
promises  in  repair.  This  nuisance  became  injurious  to  a  third 
person.  Subsequently,  and  on  the  expiration  of  the  lease,  the 
lease  was  renewed  with  like  covenants,  the  landlord  not  taking 
actual  possession,  but  knowing  of  the  injury.  Held,  that  the 
landlord  was  liable  for  the  injury:  Ingwersen  v.  Ranhin,  4ri  N.  J. 
L.  18;  54  Am.  Rep.  109.  The  owners  of  the  upper  stories  of  a 
store  situated  on  a  public  street  let  them  to  a  tenant,  and  an 
entrance  directly  in  front  of  the  stairs  leading  to  the  upper 
glories  is  so  constructed  and  is  so  habitually  kept  open  as  to 
indicate  that  it  is  a  proper  entrance  for  those  who  have  occa- 
sion to  use  the  stairs,  and  there  is  a  trap-door  between  it  and  the 
stairs,  which  they  negligently  and  carelessly  leave  open.  Held, 
tliat  they  are  liable  in  damages  to  one  having  lawful  occasion 
to  use  the  stairs:  Elliott  v.  Pray,  10  Allen,  378;  87  Am.  Dec.  654. 

Illustrations  (Continued).  —  Owners  Held  not  Liable. — 
The  owner  of  a  mine  contracted,  with  others,  to  work  it,  and  it 
was  agreed  that  the  contractors,  and  not  the  owner,  should  l)e 
responsible  for  injuries  to  workmen.  It  was  also  stipulated  that 
wlien  the  contractors  repaired  the  mine  it  should  be  done  under 
tlie  supervision  of  the  owner's  superintendent.  The  mine  was 
ill  jjroper  condition  when  the  contractors  took  possession.  A 
worlcnian  was  killed  by  the  falling  of  rock  from  the  roof  Held, 
that  the  owners  were  not  liable:  Samuelson  v.  Cleveland  Iron 
Mliumj^  Co.,  49  Mich.  164;  43  Am.  Rep.  456.  A  let  to  B  three 
rooms  in  a  house,  with  the  privilege  of  using  the  flat  roof  of  an 
extension  to  dry  clothes.  A  child  three  years  old  came  to  see 
P),  and  went  on  the  roof,  and  fell  through  a  sky-light.  Held, 
that  the  child  had  no  right  of  action  against  A:  Miller  y.  Wood- 
la'(i<l,  104  N.  Y.  471.  On  the  iron  frame  of  a  Hyatt  light  set  in 
a  sidewalk  to  light  the  basement  under  it,  worn  smooth  and 
slippt*ry,  a  traveler  fell,  who  recovered  judgment  against  the 
city,  which,  in  turn,  sued  the  owner  of  the  building,  who  had 
let  the  lower  story  and  basement  to  one  who  had  covenanted  to 
keep  the  premises  in  repair.  Held,  that  the  action  could  not  be 
maintained:  Boston  v.  Gray,  144  Mass.  53.  Defendant  bought  a 
house  in  September,  subject  to  a  lease  to  expire  in  May.  In  April, 
phiintilf  was  injured  by  a  defective  coal-hole  in  the  sidewalk. 
Defendant  had  no  knowledge  of  the  defect.  Held,  that  he  was 
not  liable  for  the  injury :  Woram  v.  Noble, 41  Hun, 398.  Defendant 


§  1155 


NEGLIGENCE. 


2022 


rented  one  floor  of  a  building  to  L.  for  a  laundry,  and  supplied  hini 
with  motive  power  by  a  revolving  shaft  driven  by  steam.  L. 
erected  a  partition  near  the  shaft.  The  plaintiff  in  L.'s  employ, 
endeavoring  to  pass  between  the  partition  and  the  shaft,  was 
caught  by  the  shaft  and  injured.  Held,  that  he  had  no  cause  of 
action  against  defendant:  Ryan  v.  Wilson,  87  N.  Y.  471;  41 
Am.  Rep.  384.  A  lessee  hired  premises,  to  be  restored  at  the 
end  of  the  term  to  the  condition  that  they  were  in  at  the  begin- 
ning of  it.  The  lessee  made  alterations,  and  an  accident  resulted 
to  a  third  party  by  reason  of  the  insecurity  of  a  certain  balcony. 
Held,  that  the  landlord  was  not  liable:  Bard  v.  R.  R.  Co.,  io 
Daly,  520.  The  owner  of  a  building  exercised  due  care  in  keep- 
ing locked  the  door  leading  to  the  elevator;  but  a  tenant,  who 
had  the  right  to  use  the  elevator,  procured  a  key  without  the 
owner's  knowledge,  and  left  the  door  unlocked.  A  plunilxjr, 
sent  for  by  the  tenant,  opened  the  door  and  fell  down  the  well. 
Held,  that  the  owner  was  not  liable:  Handyside  v.  Poivcrs,  145 
Mass.  123.  Defendant,  for  himself  and  other  owners,  leased  a 
hall  to  a  military  company,  who  assumed  the  duty  of  repair, 
and  not  to  underlet  without  consent  of  the  defendant.  Without 
such  consent  the  company  leased  it  for  a  skating-rink.  The 
plaintiff  in  going  to  it  fell  into  a  hole  in  the  floor  of  the  passage- 
way used  for  the  hall  and  for  other  rooms  in  the  same  building 
occupied  by  other  tenants,  and  was  injured.  The  owners  of  the 
building  all  lived  in  another  town,  and  none  of  them  knew  of 
the  defect.  Held,  the  defendant  was  not  liable:  Cole  v.  McKey, 
66  Wis.  500;  57  Am.  Rep.  293.  A,  the  owner  of  three  adjoining 
buildings,  each  containing  an  elevator  operated  by  an  engine 
in  the  rear  of  one  of  them,  leased  one  to  B,  who  agreed  to  pay 
the  cost  of  keeping  his  elevator,  which  was  exclusively  used  by 
him  and  his  employees,  in  good  condition  and  one  third  the  cost 
of  running  the  engine,  which  he  did,  notifying  A  from  time  to 
time  of  necessary  repairs,  until  the  lease  was  renewed  with  the 
same  provisions,  except  that  A  agreed  not  to  ask  reimburse- 
ment for  repairs.  After  this  renewal,  B's  elevator-rope  broke, 
A  never  having  been  notified  that  it  needed  repairs,  though  his 
engineer  could  have  seen  it  when  he  oiled  the  machinery.  Held, 
that  A  was  not  liable  for  the  consequent  injury,  as  the  elevator 
was  not  in  his  possession  or  control,  and  the  engineer's  oppor- 
tunity was  not  notice  to  him  that  it  needed  repairs:  Sintnnv. 
Builrr,  40  Ohio  St.  158.  Defendant  was  sued  for  an  injury  sus- 
tained by  plaintiff  from  the  fall  of  a  sign-board  which  persons 
were  taking  down  from  a  building  belonging  to  defendant.  The 
case  was  destitute  of  proof  that  defendant  had  anything  to  do 
with  removal  of  the  sign,  which  belonged  to  an  outgoing  tenant. 
Held,  that  the  action  was  not  maintainable:  Sawyer  y.  Martins, 
25  111.  App.  521. 


202 


OT 


INJURIES    ON    REAL    PROPERTY. 


1150,  1157 


edhim 
m.    L. 
mploy, 
ift,  was 
itiuse  of 
471;  41 
L  at  the 
e  begin- 
resvilted 
Dalconv. 

.  Co.,  io 

in  keep- 
ant,  wlio 

hout  the 

plinnher, 

the  well 

mers,  145 

,  leased  a 

of  repair, 
Without 

ink.    The 

e  passage- 

e  buihling 

ners  of  the 
knew  of 
V.  McKcy, 
adjoining 
an 'engine 
eed  to  pay 
ly  used  by 

Ird  the  cost 
ira  time  to 
Id  with  the 
[reinibuvse- 
lope  broke, 
liough  his 

iry.    1^'"^'^ 
,e  elevator 

ler's  opyor- 
Sinloii  V. 

[injury  sus- 
ch  persons 
dant.  The 
.hing  to  do 
ling  tenant. 
V.  3iai'(ui.8, 


Illustrations  (Continued).  —  Occupants  Held  Liable. — ■ 
I)  was  tenant  of  the  first  floor  and  basement  of  a  building,  and 
C  of  the  chambers.  Each  had  a  right  to  use  a  hoistway,  which, 
when  not  in  use,  v/as  closed  by  a  trap,  which,-when  down,  made 
a  continuous  floor  with  the  rest  of  the  story.  Held,  that  C  had 
the  right  to  use  the  trap  as  a  floor  when  the  hoistway  was  not 
in  use,  and  that,  under  an  agreement  that  the  person  using  the 
hoistway  should  shut  the  trap-doors  afterwards,  C,  who  fell 
through  the  trap,  left  open  by  1),  had  a  right  of  action,  though 
his  visit  to  the  trap  was  to  get  a  package  that  ho  had  stored 
there:  Kent  v.  Todd,  144  Mass.  478. 

Illustrations  (Continued).  —  Occupants  Held  not  Liable. 
—  A  mill  company  owning  land  on  the  bank  of  a  river  con- 
structed a  canal  by  which  it  furnished  water  power  to  persons 
on  both  sides,  to  whom  it  rented  mill  sites,  with  a  right  of  way 
across  the  canal.  The  canal  was  entirely  covered  over  with  a 
platform  of  wood,  which  had  been  used  for  ten  years,  to  the 
company's  knowledge,  by  all  persons  having  business  at  those 
mills,  for  the  purpose  of  passing  and  repassing.  Among  the 
tenants  was  M.,  who  sublet,  and  whose  tenant  constructed  that 
part  of  the  platform  opposite  his  premises.  When  the  sublease 
expired,  M.  continued  in  possession  under  his  lease.  Held,  that 
the  duty  of  keeping  the  platform  in  repair,  as  to  the  public,  de- 
volved on  the  company,  and  not  on  M.:  Nash  v.  Minneapolis 
Mill  Co.,  24  Minn.  501;  31  Am.  Rep.  349. 

§  1156.    Liability  of  Landlord  to  Tenant. —  As  to  the 

liability  of  landlord  to  tenant  for  the  condition  of  prem- 
ises, see  post,  Title  Ileal  Property  —  Landlord  and  Tenant. 

§  1157.  Excavation  on  One's  Land  near  Highway. — 
If  one  makes  an  excavation  so  near  the  lino  of  tlic  high- 
way that  one  lawfully  making  use  of  the  highway  niiglit 
accidentally  fall  into  it,  his  duty  is  to  erect  guards  as  a 
protection  against  such  accidents,  and  ho  will  1)0  rcsponsi- 
l)le  Cor  injuries  occasioned  by  his  neglect  to  do  so.^  Where 
the  excavation  is  on  his  own  land,  and  not  near  the  high- 
way, ho  is  not  bound  to  guard  it,'*  except  as  to  persons 


•r.;iriRM  ?>.  Ward.  2  Car.  &  K.  GOl; 
9  Com.  li.  .-iOJ;  Wcttor  v.  Dunk,  4 
Post,  .'c  F.  '2!IS;  ILirdcastlo  r.  11.  R. 
C.I.,  4  ifm-l.  &  N.  07;  Valo  v.  Hliss, 
30  Bill..  ;{.-)S;  Davis  v.  Hill,  41  N.  II. 
3'21l;  Uiiltimofo  ami  Ohio  II.  11.  Co.  v. 
Botukr,    36   Md.    508;    Stratton    v. 


Staples,  59  Me.  94;  Beck  r.  Cartur,  G8 
N.  Y.  2S.3;  23  Am.  Rop.  17r>. 

2  Bush  V.  Brainard,  I  Cow.  78;  13 
Am.  Dec.  513;  Valo  v.  Bliss,  50  Barb. 
358;  Howlaud  v.  Viuceut,  10  Met. 
373;  43  Am.  Dec.  441?;  (inunlioh  v. 
Wurst,  86  Pa.  St.  74;  27  Am.  Rep. 


§1157 


NEGLIGENCE. 


2024 


who  are  thcro  by  his  invitation,  express  or  implied.^  The 
question  is,  Was  the  excavation  sufficiently  near  the  hjfrh. 
way  to  be  dangerous?'^  It  has  been  held  that  a  traveler 
may  recover  damages  of  the  owner  or  occupier  of  premises 
who,  without  fault  on  his  part,  has  fallen  into  a  hole  abut- 
ting  the  highway,'  or  within  fourteen  inches  of  it;^  but 
where  the  excavation  was  twenty-four  feet  from  the  foot- 
way,  there  was  no  liability,  although  the  intermediate 
space  had  become  obliterated  by  persons  traveling  over  it.' 
So  if  a  person  by  making  an  obstruction  in  the  street  leads 
a  traveler  to  leave  the  highway,  and  fall  into  an  oxcavatioii 
on  the  adjoining  land,  he  will  be  liable."  If  an  excavation 
has  been  made  so  near  to  a  highway,  since  its  dedication 
and  adoption,  as  to  create  or  increase  danger  to  the  public, 
and  an  accident  happens  thereby,  the  person  making  the 
excavation  is  not  absolved  from  liability  by  reason  that 
a  statutory  obligation  to  fence  the  highway  is  imposed 
upon  other  parties  who  have  neglected  to  do  so7  One 
who  maintains,  between  his  field  and  a  highway,  a  barbed- 
wire  fence  in  such  a  manner  as  to  be  dangerous  is  liable 
for  an  injury  to  a  horse  lawfully  at  large  in  the  highway.* 


684;  Corby  r.  Hill,  4  Com.  B.,  N.  S., 
550;  Houiisell  t'.  Smyth,  7  Com.  B., 
N.  S.,  7:^1;  Bock  v.  Carter,  68  N.  Y. 
283i  '23  Am.  Hep.  175. 

1  Bock  V.  Carter,  68  N.  Y.  283;  23 
Am-  Rep.  175. 

■'  Gramlich  v.  Wurst,  86  Pa.  St.  74; 
27  Am,  Rep.  084;  Hardcastle  v.  R.  R. 
Co.,  4  Hurl.  &  N.  74,  the  court  say- 
ing: "When  aa  excavation  is  made 
adjoining  to  a  public  way,  so  that* a 
person  walking  upon  it  might,  by 
making  a  false  step,  or  being  aflfected 
with  sudden  giddiness,  or  in  case  of  a 
liorso  or  carriage  way,  might,  by  the 
sudden  starting  of  a  horse,  be  thrown 
into  the  excavation,  it  is  reasonable 
that  the  person  making  such  excava- 
tion should  be  liable  for  the  conse- 
quences; but  when  the  excavation  is 
made  at  some  distance  from  the  way, 
and  the  person  falling  into  it  would  be 
a  trespasser  upon  the  defendant's  land 
before  he  reached  it,  the  case  seems  to 
us  to  be  diifereut.    We  do  not  see 


where  the  liability  is  to  .stop.  A  man 
getting  off  the  road  on  a  dark  niglit, 
and  losing  his  way,  ni;iy  wandur  to 
any  extent,  and  if  the  question  liu  for 
the  jury,  no  one  can  tell  M'hethcr  he 
is  liable  for  the  consequences  <if  his 
act  upon  his  own  laud  or  not.  ^\'e 
think  the  proper  and  true  te.<t  of  k';,'al 
liability  is,  whether  the  excavation  be 
substantially  adjoining  tlic  way;  ;uul 
it  would  be  very  dangerous  if  it  wore 
otherwise, — if  in  every  case  it  were 
left  as  a  fact  to  the  jury  wliethcr  the 
excavation  were  sufficiently  near  to 
the  highway  to  be  dangerous." 

3  Barnes  v.  Ward,  9  Com.  B  392. 

*  Hadley  v.  Taylor,  L.  R.  1  Com. 
P.  53. 

^Binks  V.  R.  R.  Co.,  2  Best  &  S, 
244. 

•*  Doyle  V.  Mulrein,  J  Sweeny,  'A';  7 
Abb.  Pr..  N.  S.,  258;  Vale  v.  BlLs^i,  50 
Barb.  358. 

'  Wettor  V.  Dunk,  4  Fost.  &  F.  1298. 

B  Sisk  V.  Crump,  112  lud.  504. 


2025 


INJURIES   ON    REAL   PROPERTY. 


1158 


Illustrations.  —  Defendant  had  for  a  long  time  allowed  a 
portion  of  his  lands  adjoining  a  street  to  bo  used  by  the  public 
as  a  part  of  tho  highway,  lie  afterwards  made  an  excavation 
therein  about  ten  feet  from  tlie  outer  line  of  tho  street,  and 
plaintiff,  while  passing  over  tho  land  in  the  dark,  fell  into  the 
excavation,  and  was  injured.  There  was  no  negligence  on 
plaintiff's  part.  Held,  that  defendant  was  liable:  Beck  v.  Carter, 
68  N.  Y.  283;  23  Am.  Rep.  175.  A  owned  a  factory  standing 
about  ten  feet  back  from  tho  line  of  tho  street  pavement,  and 
extending  along  the  street  about  eighty  feet.  The  space  be- 
tween the  street  lino  and  the  building  had  been  so  paved  that 
there  was  nothing  to  indicate  where  the  street  line  ended,  and  in 
front  of  tho  building  A  had  erected  a  porch  which  came  within 
six  feet  of  tho  street  line,  and  through  which  entrance  to  the 
building  was  effected.  Alongside  of  the  building,  and  adjoining 
tho  porch,  was  a  deep  and  unfenced  area.  B,  who  was  unac- 
quainted with  the  surroundings,  went  to  the  factory  after  dark 
in  scareh  of  her  child,  fell  into  the  area,  and  was  injured.  Ileldy 
that  A  was  liable:  Crogan  v.  Schiele,  53  Conn.  186;  55  Am. 
Rep.  88.  A  was  making  an  excavation  by  contract  on  the  land 
of  \i,  at  a  point  some  eighty  feet  from  the  street,  and  ten  or  fif- 
teen feet  above  its  grade.  A  third  person  having  fallen  into  the 
excavation  at  night,  and  crying  for  help,  C  approached  to  help 
him,  fell  into  the  excavation,  and  was  killed.  Held,  that  A  was 
not  liable  therefor:  Gramlich  v.  Wurst,  86  Pa.  St.  74;  27  Am. 
Rep.  GS4. 


§1158.  Excavations  in  Public  Street. — One  who 
makes  an  excavation  in  a  public  street,  and  leaves  it 
unguarded,  is  liable  to  any  person  who,  without  fault,  falls 
into  it  and  is  injured.'  And  this  is  so  even  whoro  the 
e.xcavation  is  by  permission  of  the  public  authorities.' 
But  an  excavation  in  violation  of  law  renders  the  maker 


'Sexton  V.  Zett,  44  N.  Y.  430; 
Wlmlun  V.  Gloucester,  4  Hun,  24; 
Irvine  v.  Wood,  51  N.  Y.  224;  10 
Am.  Hup.  G0.3;  Dygert  v.  Schenck,  23 
Wejiil.  4IG;  35  Ain.  Dec.  575;  Creed 
r,  Ilartiiuiii,  29  N.  Y.  591;  8G  Am. 
Dec.  341 ;  C'ongrevc  v.  Smith,  18  N.  Y. 
'9;  Congrcve  r.  Morqan,  18  N.  Y.  84; 
StoriMv.  Utica,  17  N.  Y.  104;  72  Am. 
Duo.  4:!7:  Aii(ler«on  ?;.  Dickie,  1  Rob. 
(X.Y.)'_';;8;2,;How.  Tr.  JO."); Davenport 
V.  Ruikiuaii,  37  N.  Y.  508;  10  Bo.sw. 
20;lii.xterv.  Warner,  G  Hua,  585;  Clif- 
ford r.  Dam,  10  Alb.  L.  J.  57;  Irviu 


V.  Fowler,  5  Robt.  482;  Irwinr.  ^^pi'igg, 
6  Gill,  200;  Nelson  v.  Godfrey,  12  111. 
20;  South  etc.  R.  R.  Co.  v.  Chappell, 
Gl  Ala.  527. 

2  Sexton  V.  Zett,  44  N.  Y.  4.']0.  A 
person  who  interferes  in  any  way  with 
a  sidewalk  in  a  city,  and  leaves  it  in  a 
dangerous  condition,  is  liable  for  in- 
juries caused  thereby,  whetlier  he 
know  it  to  be  dangerous  or  not;  and 
irrespective  of  any  permission  from 
the  public  authorities  to  do  the  work 
from  which  the  injury  arises:  Sextoa 
V.  Zett,  5GBarb.  119. 


81159 


NEGLIGENCE. 


2026 


liable  in  any  event.*  The  fact  that  he  provided  proper 
guards  or  coverings  will  not  affect  his  liability,  if  they 
become  unsafe  or  were  insuflScient  at  the  time  of  tho  ac- 
cident, such  person  being  bound,  at  his  peril,  to  keep  tho 
highway  safe.^  But  an  excavation  is  not  a  nuisance,  and 
a  license  from  the  municipal  authorities  to  legalize  it  is 
not  requisite  where  it  is  an  incidental  encroachment  on 
a  street  necessary  in  the  improvement  of  the  lot  fronting 
upon  it,  and  is  properly  made  and  guarded,  and  not  con- 
tinned  an  unreasonable  length  of  time.' 

§  1159.  Areas  under  Sidewalks. — Areas  or  excava- 
tions of  like  kind  under  sidewalks  are  not  unlawful,  and 
are  not  nuisances,  if  kept  in  repair  and  so  as  not  to  in- 
terrupt the  proper  use  of  the  street.*  Where  one  duly 
licensed  by  the  city  authorities  has  removed  a  portion  of 
a  sidewalk  to  excavate  for  a  vault,  and  has  built  a  bridtre 
over  the  excavation  necessarily  higher  than  the  street,  he 
is  not  bound  to  make  the  bridge  as  safe  for  travelers  as 
the  sidewalk  was,  but  only  reasonably  safe.^  An  un- 
guarded opening  in  a  sidewalk  is  a  nuisance,  tliough  a 
license  to  make  the  opening  may  have  been  granted  by 
the  municipality.®  The  owner  is  liable,  however,  for  neg- 
ligence in  maintaining  them.^  A  lot-owner  in  a  city 
cdustructing  and  maintaining  a  scuttle-hole  in  tho  side- 
walk in  front  of  his  lot,  and  covering  it  so  insecurely  that 
a  passer  is  injured,  is  liable  to  him  therefor,  whether  the 
scuttle-hole  was  authorized  by  the  city  or  not,  and  al- 
though tho  tenant  had  agreed  to  keep  the  scuttle  closed.* 
It  is  the  duty  of  the  occupier  of  a  house  having  an  area 


•  0 wings  V.  Jones,  9  Md.  108. 

'  Coiigreve  v.  Morgan,  18  N,  Y.  84; 
72  Am.  Dec.  495. 

8  Clark  V.  Fry,  8  Ohio  St.  358;  72 
Am.  Dec.  590. 

♦Fisher  v.  Thirkell,  21  Mich.  1;  4 
Am.  Rep.  422;  Irvin  v.  Fowler,  5 
E,obt.482;  Barry  r.  Terkildsen,  72  Cal. 
254;  1  Am.  St.  Rep.  65. 


6  Nolan  V.  King,  97  N.  Y.  505;  49 
Am.  Rej).  561. 

^  Jennings  v.  Van  Schaick,  108  N. 
Y.  530;  2  Am.  St.  Rep.  459. 

'  Beardsley  v.  Swann,  4  McLean,  333; 
Bush  V.  Johnston,  23  Pa.  St.  20!). 

6  Calder  v.  Smalley.CG  Iowa,  219;  55 
Am.  Rep.  270. 


2026 


2027 


INJURIES   ON   REiiL   PROPERTY. 


§1159 


proper 
if  they 
'  the  ac- 
keep  tlio 
nee,  and 
lizo  it  is 
iment  ou 
fronting 
.  not  con- 


r  excava- 
iwful,  and 
not  to  in- 
one  duly 
portion  of 
It  a  bridge 
0  street,  he 
travelers  as 
5     An  un- 
, though  a 
;ranted  by 
er,for  neg- 
in  a  city 
n  the  side- 
icurely  that 
■hcther  llie 
,ot,  and  al- 
Ittle  closed.* 
ng  an  area 

In.  Y.  565;  49 

Ichaick,  103  I?. 

1.  459. 

1 4  McLean,  333; 

la.  St.  201). 
IG  Iowa,  219;  5o 


fronting  a  public  street  so  to  fence  it  as  to  make  it  safe  to 
passers-by;  and  it  is  no  defense  to  an  action  against  liim 
for  neglecting   to  do  so,  whereby  the  plaintiff  fell  down 
into  the  area  and  was  hurt,  tliat  when  he  took  possession 
of  the  house,  and  as  long  back  as  could  be  remembered, 
the  area  was  in  the  same  o;»cn  state  as  when  the  accident 
happened/     Where  an  area  or  cellar-way  in  the  sidewalk 
is  dangerous,  it  is  no  defense  that  similar  areas  or  cel- 
lar-ways are  common  in   the  city,  and  are  customarily 
protected  as  the  one  in  question  was,  or  that  over  ten 
thousand  persons  had  passed  and  repassed  the  area  every 
year  since  it  had  been  built,  without  accident.^   Where  the 
injury  happens  on  a  sidewalk  in  a  large  city,  it  is  no  de- 
fense that  there  is  a  safe  and  convenient  sidewalk  outside 
of  the  dangerous   area   or   defect;   as  where    a  window 
extended  into  the  sidewalk  only  fourteen  inches,  and  the 
walk  was  six  and  one   half  feet  wide.'    It  is  immaterial 
whether  the  injury  happened  through  the  area  being  ren- 
dered dangerous  by  the  owner  or  by  his  contractor,  his 
tenant,  or  other  wrong-doer.     If,  however,  there   is    no 
question  as  to  the  area  being  wrongful  j)C'>'  ^^>  then,  it 
seems,  the  owner  or  occupier  of  the  premises  will  not  be 
liable  for  an  injury  happening  in  consequence  of  its  hav- 
ing been  opened  by  the  act  of  a  wrong-doer,  he   himself 
having  properly  secured  it.     But  if,  after  the  removal,  by 
a  trespasser  or  other  independent  person,  of  the  cover  of 
such  a  lawful  area,  the  owner  of  the  premises  suffers  it  to 
remain  open  until  a  reasonable  time  has  elapsed  in  which 
a  prudent  man  should  have  discovered  its  open  condition, 
then  he  will  be  liable  for  a  subsequent  injury  by  it  to  a 
traveler.* 

Illustrations.  —  Plaintiff  fell  through  an  open  hole  in  the 
sidewalk  in  front  of  defendant's  premises.     The  hole  was  kept 

Association  v. 


'  Coupland  v.  Hardingham,  3  Camp. 
398;  Irwia  v.  Sprigg,  6  Gill,  200;  4G 
Am.  Dec.  607;  Bueschiug  v.  Gas 
Coinpauy,  73  Mo.  219;  39  Am.  Rep. 


*  Temperance    Hall 
Giles,  33  N.  J.  L.  200. 

'  Bacon  v.    Boston,    3  Cusli.     174; 
Stephani  v.  Brown,  40  111.  4'2S. 

*  1  Thompson  on  Negligence,  1251, 


§  1160 


NEGLIGENCE. 


2028 


closed  generally  by  a  wooden  trap-door.  PlaintifT  was  not 
looking.  Jlrld,  that  defendant  was  liable  for  the  injuries  bus- 
tained  by  plaintiiT:  Barry  v.  Terklldsen,  72  Cal.  254. 

§  1160.    Objects  Falling  upon  Travelers.  —  Wlioro  a 
person  places  anything  over  the  highway  which  may  eomo 
down  and  injure  passers-by  ho  is  held  to  u  strict  watch- 
fulness to  SCO  that  it  causes  no  injury.*     One  is  liable  i'ur 
the  act  of  his  servant  in  throwing  a  keg  out  of  the  win. 
dow  of  his  house  upon  a  passer-by,  even  though  the  wulii 
is  a  private  one,  and  ho  would  not  be  liable  to  him  for  au 
injury  from  a  defect  in  it."     In  an  English  case  the  de- 
fendant had  a  lamp  and  lamp-iron  projecting  from  liis 
premises  over  the  street,  and  had  given  orders  to  a  com- 
potent  contractor  to  repair  it,  but  the  contractor  hud 
done  the  work   badly,  by  reason  of  which   tho  lamp  loll 
and  injured  the  plaintiff.     It  was  held  that  the  defendant 
was  liable.''     If  the  object  is  placed  where  it  is  in  viola- 
tion of  law,  the  party  becomes  an  insurer;  as  whore  a 
swinging  sign  was  placed  by  tho  defendant  over  a  side- 
walk contrary  to  a  city  ordinance,  and  an  extraordinary 
gale  of  wind  blew  it  down,  he  was  held  responbible  for 
the  result.'     The  owner  of  a  building,  to  tho  chimnoy  of 
which  a  gas  company  has,  without  tho  owner's  consent, 
so  affixed  a  wire  as  to  render  tho  chimney  unsafe,  and 
ultimately  to  cause  its  fall  upon  a  passer-by,  may  ])o  lia- 
ble for  the  damage  so  caused.     But  if  ho  pays  the  dam- 
age, he  has  an  action  against  the  company  for  indeiunitv.' 
Where  persons  are  building  or  making  repairs  near  or 
over  the  sidewalk  of  a  public  street,  they  must  use  a 
I)roper  degree  of  care  to  avoid  injuring  passers-by."    They 
must  use  safeguards  to  prevent  tools,  or  timber,  or  bricks, 


'  Tarry  v.  Ashton,  1  Q.  B.  Div.  314. 

*  Corrigan  v.  Union  Sugar  Refinery, 


"Gray  v.  Boston  Oas-li^lit  Co.,  lU 
Mass.  149;  19  Am.  l\<i\}.  ;^-_'4. 
98  Mass.  "577;  9ti  Am.  Dec.  085.        '  «  Clare  v.  Bank,  1  Sweeny,  Ti:!!);  3 

^  Tarry  v.  Ashton,  1  Q.  B.  Div.  314.     Jones  &  S.  20;  8  Jones  &  S.  104;  Hunt  | 
*  Salisbury    v.    Herchenroder,    100    v.  Hoyt,  20  III.  644. 
Mass.  58;  8  Am.  Rep.  354. 


202S 


2029 


IN.TURIKS   ON   REAL  PROPERTY. 


§1160 


wns  not 
uries  bus- 

Wlicre  a 
nay  como 
ct  wiilcli- 
liable  tor 
■  tlio  wiu- 
i  tlio  walk 
lim  I'or  an 
ISO  ilie  do- 

from  his 
\  tt)  a  com- 
.•actor  hiul 
I  lamp  Wl 
i  clcfcndaiil 
is  in  viola- 
as  wlicrc  a 
A'or  a  side- 
,raordinary 
(Onbiblo  for 
chimiH^y  of 

's  consent, 
[unsafe,  and 

may  b^-'  li^^' 

s  Ibo  dam- 

[indemnity.' 

lirs  near  or 

must  use  a 

-by.'"    Tliey 

|r,  or  bricks, 

[s-li^lit  Co.,  lU 

Ii).  :Vji. 

■Sweeny,  •'•'•'. ''  . 
1  &  S.  10-i;  Hunt 


or  tl>o  liko,  from  fulling,*  or  warn  passors-by  of  the  danger, 
l.y  notices,  or  in  other  wayn,"^     The  fact  that  an  object 
falls  and  injures  a  traveler  is  per  se  evidence  of  negli- 
gence.''    The  owner  of  a  building  adjoining  a  street  or 
liighway  being  under  a  legal  obligation  to  take  reason- 
able care  that  it  shall  not  fall  into  the  street  or  highway 
and  injure  persona  lawfully  there,  in  case  of  injury  so 
caused,  it  is  incumbent  upon  the  owner  to  show  that  he 
has  exercised  reasonable  care,  and  the  absence  of  such 
care  may  be  presumed  rVom  the  fact  of  the  injury/     It  is 
not  negligence  to  remove  a  barricade  after  all  the  outside 
work  of  a  house  is  completed.     Nor  is  it  the  duty  of  a 
contractor  to  guard  against  accidents  which  cannot  be 
reasonably  foreseen;   as  to  put  up  screens   at  the  win- 
dows of  a  house  to  prevent  the  tools  of  the  employees  of  a 
subcontractor,  who  has  engaged  to  do  the  plastering,  from 
falling  out  of  the  windows.     And  where,  under  such  cir- 
cumstances, a  passer-by  was  injured  "by  a  **  straight-edge  " 
of  a  plasterer  falling  out  of  the  window,  the  principal 
contractor  was  held  not  liable.^     Where  the  owner  of  a 
house  has  constructed  it  in  a  faulty  manner,  or  suffered 
it  to  get  out  of  repair  so  that  it  is  dangerous  to  the  passers- 
by  on  the  street,  it  is  a  nuisance,  and  any  person  injured 
thereby  may  recover  damages  therefor."    Where  a  city  by 


'  Hunt  V.  Hoyt,  20  111.  544;  Jager  v. 
Adams,  \'2^  Mass.  20;  25  Am.  Rep.  7. 

'  Vaudeipool  v.  Hiissen,  28  Barb. 
196;  Jackson  v.  Schmidt,  14  La.  Ami. 

m. 

^  Byrne  v.  Boadle,  2  Hurl.  &  C.  722; 
MuUun  V.  St.  John,  57  N.  Y.  507;  15 
Am.  Rep.  5.30;  Clare  v.  Bank,  1 
Sweeny,  5.S9;  3  Jones  &  S.  20;  8  Jones 
fc  .S.  104.  In  an  action  for  an  in- 
jury caused  hy  the  falling  of  tiles  neg- 
ligently piled,  it  appearing  that  they 
were  in  the  control  and  custody  of  de- 
fendant, held,  not  necessary  to  prove 
I  that  tliey  were  owned  by  defendant: 
1  Palmer  r.  St.  Albans,  56  Vt.  519. 

♦  Mullen  V.  St.  John,  57  N.  Y.  507; 
1 13  Am,  Rep.  530. 


5  Pearson  v.  Cox,  2  Com.  P.  Div.  309. 

"  Vincett  v.  Cook,  4  Hun,  318;  Rec- 
tor of  Church  of  Ascension  v.  Buck- 
hart,  3  Hill,  193;  Regina  v.  Watts,  I 
Salk.  357;  Eakin  v.  Brown,  1  E.  D. 
Smith,  30;  Mullen  v.  St.  John,  57  N. 
Y.  507;  15  Am.  Rep.  5.S0;  Lowell  v. 
Spaulding,  4  Cush.  277;  50  Am.  Dec. 
775;  Oakham  v.  Holbrook,  11  Cush. 
299;  Deford  v.  State,  30  Md.  179; 
Whalen  v.  Gloucester,  4  Hun,  24;  Mil- 
ford  V.  Holbrook,  9  Allen,  17;  85  Am. 
Dec.  735;  Shipley  v.  Fifty  Associates, 
101  Mass.  251;  3  Am.  Rep.  :M0;  Had- 
ley  V.  Taylor,  L.  R.  1  Com.  P.  53; 
Kearney  v.  R.  R.  Co.,  L.  R.  0  Q.  B. 
759;  Welfare  v.  R.  R.  Co.,  L.  R.  4  Q. 
B.  093. 


§  IICO 


NEOLIOKNCE. 


2030 


authority  of  itH  charter  maintains  shado-trees  on  tho  ssido. 
■\valkri,  llic  owner  or  occupant  of  a  lot  is  not  impliedly 
bound  to  trim  thom,  nor  liable  for  injury  to  a  pasaor-by 
from  the  fall  of  a  neglected  rotten  limb.* 

Illustrations. — A  cotton-bale,  temporarily  set  up  on  a  side- 
walk, awaiting  deposit  in  a  warehouse,  fell  upon  nrid  injured  a 
person.  Held,  tho  warehouseman  was  liable:  Maddox  v.  ('(oi- 
ninifham,  G8  (ra.  431;  45  Am.  Kep.  500.  A  mechanic  employed 
to  put  up  signs  on  tho  second  story  of  a  building,  on  a  thorough- 
faro  in  a  populous  city,  made  use,  for  that  purpose,  in  a  windy 
day,  of  a  swinging  stage  that  had  no  rim  or  other  preventive  of 
tho  sliding  off  of  tools.  A  hammer  fell  on  the  head  of  a  woman 
passing  on  tho  sidewalk  underneath.  Held,  that  the  mecliaiiio 
was  guilty  of  gross  negligence:  Hunt  v.  Hoyt,  20  111.  544.  A 
foot-passenger  on  a  city  street  sat  for  a  moment  on  tho  door- 
Bill  of  a  house  fronting  on  tho  street  to  tie  his  shoo,  and  there 
was  injured  by  a  brick  falling  from  the  dilapidated  wall  of 
the  house  upon  his  head,  which  was  within  the  street 
lines.  Held,  that  the  owner  of  tho  house  was  liable:  Mnrnnj 
V.  McShime,  52  Md.  217;  36  Am.  Rep.  367.  The  owner  of  ad- 
joining houses  with  an  alley  between  them  leading  to  a  factory 
suffers  tho  wall  of  a  privy  abutting  upon  the  alley  to  bo  in  luul 
repair,  and  the  minor  child  of  tho  tenant  of  one  of  tho  houses, 
while  on  his  way  to  tho  factory  for  his  own  amusement,  was 
injured  by  tho  wall  falling  upon  him.  Held,  that  tho  owner 
was  liable;  Schilling  \.  Aberncthy,  112  Pa.  St.  437;  56  Am.  liep. 
320.  Plaintifl",  an  eleven-year-old  girl,  was  injured  by  a  falling 
brick,  as  she  was  walking  on  tho  sidewalk  by  a  house  whioli 
defendants  were  tearing  down.  Defendants  had  placed  a  bar- 
rier across  the  sidewalk,  leaving  an  opening  suflicient  for  a 
grown  person  to  enter  and  pass  by  the  House.  Plaintiir  went 
around  the  barrier,  walking  in  the  gutter,  and  then  stopped 
back  upon  tho  sidewalk,  when  the  injury  occurred.  Held,  that 
it  was  for  tho  jury  to  say  whether  tho  accident  resulted  from  tie- 
fendant's  negligence  in  not  providing  a  proper  barrier,  or  jdai'i- 
tiflf's  negligence  in  disregarding  the  one  provided:  Mavmiw 
V.  Siemerts,  71  Mo.  101.  Plaintiff  while  walking  on  a  side" 
in  front  of  a  building  which  the  defendant  was  eroetinj. 
struck  and  injured  by  a  brick  falling  therefrom;  there  we, 
barriers  to  prevent  the  approach  of  foot-passengers.  Held,  Um 
the  defendant  might  be  liable  for  the  injury  on  account  of  the 
omission  to  construct  barriers,  although  there  was  no  negligence 
in  suffering  tho  brick  to  fall:  Jager  v.  Adams,  123  Mass.  2G;  25 
Am.  Rep.  7.    Defendant's  building  and  one  on  an  adjoining  lot, 

»  WeUer  v.  McCormick,  47  N.  J.  L.  397;  54  Am.  Rep.  175. 


2001 


INJURIES   ON  REAL  PROPERTY. 


§11C1 


[  a  woman 
nieclianic 
I.  544.    A 
the  door- 
and  there 
ed  wall  of 
the    street 
[e:  Mnmty 
mer  of  ad- 
to  a  factory 
0  bo  in  had 
[the  houses, 
eraeut,  was 
the  owner 
iG  Am.  Vvep, 
)y  a  fivUing 
lOUse  whieli 
iced  a  liar- 
ciont  for  a 
i,intiff  went 
ion   Btepped 
IlrhJ,  that 
jcd  from  de- 
,cr,or  plain- 
M'jvennii 
a  pid<" 
Iroctin^' 
|u>ro  wei 

Held  thai 
;ount  of  the 
o  nogliRcuce 
lass.  2t);  'io 
jdjoining  lot, 

.  175. 


the  pido  walls  of  which  were  very  near  each  other,  worn  de- 
ptroyctl  ])y  lire,  leaving  the  walls  partly  standing,  with  rnltbish 
liciipt'd  up  to  tljo  top  of  each.  Six  months  afterward,  while  the 
jilaiiitiir  was  removing  the  wall  on  the  adjoining  lot,  the  defend- 
aiilH  wall  fell,  injuring  him.  In  the  absence  of  ovidcnco  that 
defendant's  wall  was  dangerous,  or  would  have  fallen  before  the 
tiro  or  before  the  removal  of  the  other  wall,  or  that  defendant 
knew  or  was  notified  of  that  removal,  or  that  it  was  eontem- 
platt'd,  held,  that  an  action  for  such  injury  could  not  be 
luaiutained:  Mahoney  v.  Libbey,  123  Mass.  20;  25  Am.  Kep.  6. 

§1161.     Snow  and  Ice  on  Roofs— On  Sidewalks. — 

One  who  suffers  snow  and  ice  to  accumuluto  on  the  roof 
of  hisi  house,  and  to  remain  tliero  for  an  unrea-souable 
length  of  time  after  notice  of  it,  is  liable  if  the  mass  slides 
off  and  injures  a  passer-by.*  If  one  fixes  a  spout  or  cor- 
nice which  gathers  water  that  falls  upon  liis  roof,  and 
throws  it  upon  his  neighbor's  land,"  or  upon  the  sidewalk, 
so  that  ice  forms  there,  and  a  traveler  is  injured,  an 
action  lies.^  Where  there  is  a  statute  making  a  building 
so  erected  iliat  its  roof  overhangs  the  street  an  indictable 
nuisance,  and  the  injury  is  the  direct  consequence  of 
the  roof  being  so  constructed,  then  negligence  need  not 
be  averred  or  proved.*  So  where  the  roof  of  a  building 
is  so  constructed  as  to  cast  snow  and  ice  into  tlio  street, 
it  k  per  ue  a  nuisance,  and  the  owner  is  liable  for  any 
injury  produced  thereby.*  The  owners  and  occupiers  of 
premises  abutting  a  street  in  a  city  are  not  responpible 
to  individuals  for  injuries  resulting  from  a  failure  to 
remove  from  the  sidewalk  accumulations  of  snow  and  ice 
erontiM'  bv  natural  causes,"  although  there  is  a  valid  ordi- 


Shiploy  V.  Fifty  Associates,  101 
Mass. '-',")!;  .S  '  ..  Rep.  346;  lOttMass. 
194;  8  Am.  .ep.  318;  Garland  v. 
Towtic,  55  N.  H.  55.  As  to  the  lia- 
bil  •>  cpf  the  owner  where  the  building 
i-  isi'd,  see  Leonard  v.  Storer,  115 
Mass.  ,S();  15  Am.  Kep.  76. 

Ultyuolds  V.  Clarke,  2  1  .  Raym. 
1399;  I  Strange,  634;  Fay  v.  Prentice, 
1  Com.  B.  828;  Bellows  v.  Sackett,  15 
Barb.  00. 


'  Kirby  v.  Boylston  etc.  Ass'n,  14 
Gray,  249;  74  Am.  Dec.  682. 

*  Garland  v.  Towne,  55  N.  H. 
55. 

*  Walsh  V.  Mead,  8  Hun,  389;  Ship- 
ley d.  Fifty  Associates,  101  Mii.ss.  251; 
3  Am.  Rep.  346;  106  xMass.  194;  8 
Am.  Rep.  318. 

6  Moore  v.  Gadsdeu,  87  N.  Y.  84;  41 
Am.  Rep.  352. 


§1162 


NEGLIGENCE. 


2032 


nanco  requiring  them  to  remove  such  accumulation?. 
The  only  liability  is  to  pay  the  penalty  prescribed  by  the 
ordinance/  The  liability  to  pay  damages  rests  on  the 
municipal  corporation  charged  with  the  repair  of  strcf^ts.^ 

Illustrations. —  A  city  charter  required  lot-nwners  to  koop 
the  sidewalk  "in  a  good  and  safe  condition  for  use,"  and  made 
them  liable  for  injuries  to  any  person  by  "reason  of  a  defective 
sidewalk."  The  sidewalk  in  front  of  defendants'  premises  had 
become  smooth  and  slippery  by  long  use,  and  some  third  per- 
son, with  their  knowledge,  had  painted  it,  thus  increasing  its 
slipperiness.  The  plaintiff  slipped  and  fell  on  it,  sustaining 
injury.  Held,  that  defendants  were  liable:  Morton  v.  Smilh 
48  Wis.  ^'J5;  33  Am.  Rep.  811. 

g  1162.  Telegraph-wires  in  Streets.  —  A  telegraph 
company  which  allows  its  wire  to  hang  so  low  as  to  in- 
terfere with  a  vehicle  and  cause  damage  is  liable.^  And 
a  wire  found  in  such  a  condition  is  evidence  of  negli- 
gence.^  A  telegraph-wire  carried  from  one  pole  to  an- 
other is  not  a  dangerous  object  per  se.^  And  where  a 
telegraph-pole  was  broken  by  a  storm,  injuring  the  plain- 
tiff, the  company  was  held  not  liable.  The  court  said 
that  the  company  was  bound  to  use  reasonable  care  in 
the  construction  and  maintenance  of  its  line,  and  if  it 
appeared  that  the  post  was  originally  not  reasonably 
sufficient,  or  carelessly  permitted  to  become  insufficient 
by  decay,  then  responsibility  attached.  But  the  company 
was  not  absolutely  bound  to  have  iv-->  posts  in  the  streets 
so  strong  and  secure  that  they  could  not  be  blown  down 
or  broken  by  any  storm,  nor  bound  to  insure  the  safety 
of  passengers  in  the  streets  from  injuries  resulting  from 
the  falling  thereof.     The  evidence  showed  that  tlie  acci- 

*  Kirby  v.  Boylston   etc.   A.ds'n,  14  *  Dickey  v.  Maine  Tel.  Co.,  40  Me. 

Gray.  249;   74  Am.  Dec.  682;  Flynn  483;  West.  Union  Tel.  Co.  v.  Jlyser, 

V.  Canton  Co.,  40  Md.   312;   17  Am.  91  U.  S.  495. 

Rep.  603;  Moore  ?\  Gadsden,  93  N.  Y.  *  Thomas  v.  W.  U.    Tel.    Co.,  100 

12;   Fuchs  v.  Schmidt,  8  Daly,  317;  Mass.  156. 

Taylor  v.  R.  R.  Co.,  45  Mich.  74;  40  '->  Wabash  etc.  R.  R.  Co.  v.  Locke, 

Am.  Rep.  457.  112    Ind.     404;    2    Am.     St    Rep. 

•^  See  2'o.i<,  Division  V.,  Municipal  193. 
Corporatioaa. 


2032 


2033 


INJURIES    ON    REAL    PROPERTY. 


§1163 


lations. 

t  by  tbo 

on  the 

streets? 

3  to  koop 
ind  made 

defective 
Tiisos  had 
third  per- 
easing  its 
sustaining 

v.  Smith, 

telegraph 
as  to  in- 
jle.'     And 
5  of  negli- 
ole   to  an- 
d  where  a 
;  the  plain- 
court   said 
lie  care  in 
,  and  if  it 
reasonably 
nsufficiont 
e  company 
the  streets 
llown  down 
the  safety 
Iting  from 
,t  the  acci- 

lei.  Co.,  40  Me. 
Co.  V.  Kyser, 

Tel.   Co.,  100 

Co.  ''•  Locke, 
[m.    St    Rep. 


dent  was  occasioned  by  a  snow-storm  of  unusual  severity, 
{Uid  tliat  the  line  was  sufficient  for  storms  reasonably  ex- 
pected; and  the  charge  that  defendant  was  not  bound  so 
to  make  or  manage  its  line  as  to  guard  against  storms  of 
unusual  severity,  the  occurrence  of  which  could  not  be 
reasonably  expected,  which  the  lower  court  refused  to 
give,  was  affirmed  as  correct.' 

Illustrations.  — Telephone-wires  erected  by  a  company  act- 
ing under  a  Hcense  to  erect  and  maintain  wires  became  encum- 
bered with  ice  while  the  fire  department  were  engaged  in  putting 
out  a  fire,  and  fell  into  the  street,  where  plaintiff,  while  in  the 
exereise  of  due  care,  stumbled  over  them  and  was  injured. 
//('/(/,  that  if  the  company  failed  to  remove  the  wires  within  a 
reasonable  time  after  notice  of  their  fall,  it  was  liable:  Nichola 
V.  Minneapolis^  33  Minn.  430;  53  Am.  Rep.  56. 

§  1163.  Objects  Frightening  Horses. — A  person  who 
negligently  or  unlawfully  places  or  leaves  in  the  highway 
an  ol)ject  which,  from  its  appearance,  is  likely  to  frighten 
a  horse  of  ordinary  training  and  docility  is  liable  to  a 
traveler  for  any  damage  which  is  the  proximate  result  of 
bis  horse  taking  fright  at  such  object.^  The  plaintiff  has 
recovered  damages  where  the  objects  frightening  the  horse 
were  the  following:  A  pile  of  buffalo-hides  on  the  defend- 
ant's own  land;'  the  beating  of  a  drum  in  tho  highway;* 
a  dog  barking  at  the  horse  ;^  a  derrick  employed  by  a  rail- 
road in  handling  freight;'*  tubing  and  ot^er  machinery 
being  transported  for  the  use  of  a  water-works;'  a  steam- 
whistle  in  a  mill;^  a  pile  of  stones  collected  in  the  high- 


'  Wiml  V.  Tel.  Co.,  71  N.  Y.  81;  27 

Am.  Rt'i).  10. 

'(.'liiitoii  ?.'.  Howard,  42  Conn.  294; 
Jones  r.  R.  R.  Co.,  107  Mass.  201; 
JiuM  r.  Farso,  107  Mass.  264;  Klipper 
r.  Cottev,  44  M(l.  117;  Watkins  v. 
Re,Miii,''_>  Fost.  &  F.  629;  Hill  v.  New 
River  Co.,  9  Best  &  S.  303;  Flower  v. 
Ad;nii, '2 Taunt.  314;  Laker.  Millikin, 
M  Me.  240;  16  Am.  Rep.  456;  Harris 
r.  M(,l.l,s.  27  Week.  Hep.  154;  House 
v.iktculf,  27  Conu.  631;  Beuuett  v. 
123 


166;  34  Am.  Rep. 
McGraw,   II   Kaa. 


Lovell,   12  R.  I. 
628. 

^  Lobenstein  v. 
645. 

*  Louby  V.  Hafuer,  1  Strob.  185. 

*  Schmid  v.    Humphrey,    48   Iowa, 
652;  30  Am.  Rep.  414. 

«  Jones  V.  R.  R.  Co.,  107  Mass.  261. 
'  Bennett  v.  Lovell,  12  R.  L  166;  34 
Am.  Rep.  628. 

*  Knight  V.  Goodyear  etc.  Mfg.  Co., 
38  Coaa.  438;  9  Am.  Reg.  400. 


§1163 


NEGLIGENCE. 


2034 


way;'  a  jet  of  water  spouting  up  out  of  the  ground  in  a 
public  highway,  about  four  feet  high;^  a  traction  steam- 
engine  driven  along  the  highway  at  the  rate  of  jix  miles 
an  hour.'  But  not  a  pile  of  building  materials  placed  of 
necessity  on  the  side  of  the  highway.*  A  railroad  com- 
pany  is  not  liable  for  leaving  its  cars  standing  on  a  side- 
track, loaded  with  slabs  of  wood  in  the  usual  way,  and  for 
leaving  a  hand-car  bottom  side  up,  according  to  the  usual 
custom,  although  it  may  thereby  produce  a  "scarecrow" 
with  "a  horrid  and  frightful  appearance,"  frightening  a 
traveler's  horse  and  injuring  the  traveler.^  One  who  care- 
lessly sprinkles  a  pavement  where  wild  horses  are  hitched, 
and  so  frightens  them,  and  causes  them  to  run  down  the 
street  and  injure  a  pedestrian,  is  guilty  of  negligence  and 
liable  for  the  injury."  The  question  frequently  is,  Has  the 
defendant  impeded  the  highway  an  unreasonable  length 
of  time  V 

Illustrations.  — A  land-owner  engaged  in  whitewashing  a 
fence  skirting  a  highway  running  through  his  land  used  a  small 
barrel  mounted  on  wheels.  This,  with  a  shovel  projeoting 
slightly  above  the  top,  was  left  at  the  side  of  the  highway  over 
Sunday.  The  plaintiff's  horse  took  fright  at  it  and  caused  per- 
sonal injuries  to  him.  Held,  that  the  defendant  was  not  liable 
unless  the  vehicle  was  so  unusual  and  extraordinary  as  to  have 
a  natural  tendency  to  frighten  horses  of  ordinary  gentleness  and 
training,  and  was  left  by  the  roadside  an  unreasonable  length 
of  time:  Piollet  v.  Simmers,  106  Pa.  St.  95;  51  Am.  Rep.  496. 
Plaintiff's  minor  daughter,  with  a  suitable  horse  and  vehicle, 
and  in  the  exercise  of  ordinary  care,  was  traveling  along  a  pub- 
lic highway,  when  the  horse  became  frightened  at  the  appear- 
ance of  the  defendant's  hog,  which  was  permitted  to  be  in  the 
highway  without  a  keeper,  and  occasioned  an  injury  to  the| 
daughter  and  the  vehicle.  Held,  that  the  defendant  was  liable  ] 
for  the  injury,  whether  he  knew  or  not  that  the  hog  was  there  | 
at  the  time:  Jewett  v.  Oage,  55  Me.  538;  92  Am.  Dec.  Glo. 

*  Clinton  v.  Howard,  42  Conn.  294.        *  Atchison  etc.  R.  R.  Co.  v.  Loree,  | 
2  Hill  V.  New  River  Co.,  9  Beat  &  S.    4  Neb.  446. 

303.  «  Forney  v.  Geldinacher,  75  SIo.  113;  I 

» Watkina  v.  Reddin,  2  Foat.  &  F.  42  ^m.  Rep.  388. 

629.  '  Judd  V.  Fargo,  107  Mass.  264. 

♦  Mallory  v.  Griffey,  85  Pa.  St.  275. 


2035 


INJUEIES  ON   HEAL   PROPERTY. 


§1164 


Plaintiff,  while  driving  along  a  highway,  was  injured  by  reason 
of  his  horse  taking  fright  at  an  engine  mounted  on  wheels,  which 
defendant  was  moving  along  the  same  highway  by  means  of 
steam-power.  In  an  action  for  danjages,  the  court  charged  the 
jury  that  "a  party  placing  upon  the  highway  any  vehicle  un- 
usual, and  calculated,  from  its  appearance  and  mode  of  locomo- 
tion, to  frighten  horses  of  ordinary  gentleness,  is  liable  for  all 
damages  resulting  therefrom."  Held,  error:  Macomher  v.  Nichols, 
34  Mich.  212;  22  Am.  Rep.  522.  A  turnpike  company,  exact- 
ing toll  for  public  travel  on  its  road,  negligently  suffered  the 
same  to  become,  and  to  its  knowledge  to  remain  a  long  time, 
out  of  repair,  by  means  of  a  large  hole  near  the  center  of  the 
track.  The  plaintiff  riding  on  horseback  on  said  road,  having 
no  knowledge  of  the  defect,  and  being  in  no  way  negligent,  her 
horse  became  frightened  by  the  hole,  shied,  threw  her  to  the 
ground,  and  injured  her.  Held,  that  she  might  recover  dam- 
ages from  the  company  therefor  without  alleging  that  the  horse 
came  in  contact  with  the  hole,  or  that  there  was  not  room  to 
pass  on  either  side:  Broolcsville  etc.  Turnpike  Co.  v.  Pumphrey, 
59  Ind.  78 J  26  Am.  Rep.  76. 

§  1164.  Pennissible  Obstructions  in  Streets — Building 
Materials.  —  An  adjoining  owner  may  place  building 
materials  on  a  portion  of  the  highway  and  allow  them 
to  remain  there  a  reasonable  length  of  time,  where  it  is 
necessary  to  do  so  in  order  to  enable  him  to  erect  a 
building  on  the  line  of  the  highway.^  The  streets  of  a 
town  may  be  used  for  the  temporary  deposit  of  goods  in 
their  transit  to  the  storehouse  or  for  wharfage,  regard 
being  paid  to  their  evident  object  and  purpose.^  The 
owner  of  a  warehouse  located  on  a  stret^  through  which 
the  railroad  runs  has  the  right  to  unloua  goods  from  a 
car  standing  on  the  track,  l)y  means  of  skids  extending 
from  the  car  to  the  warehouse,  provided  there  is  ample 
room  to  accommodate  travel  on  the  other  side  of  the 
street,  and  the  time  occupied  in  unloading  is  reasonably 
short.  So  tho  right  of  a  railroad  corporation  to  stop  its 
cars  in  the  street  and  unload  them,  in  a  reasonable  time 

'  Mallory  v.  GriflFey,  85  Pa.  St.  275;  hausen  v.  Pond,  36  Wis.  29;  O'Liuda 

Palmer  v.  Silverthorn,  32  Pa.  St.  65;  v.  Lothrop,  21  Pick.  292,  297. 
Puople  V.  Cuuningham,  1  Denio,  524;         ^  Haight  v.  Keokuk,  4   Iowa,  199; 

43  Am.  Dec.   709;    Wood  v.  Meara,  Jochem  v.  Robinson,  72  Wis.  199. 
12  liid.  515;  74  Am.  Deo.  222;  Uuud< 


§  11C4 


NEGLIGENCE. 


203G 


and  manner,  is  incidental  to  the  right  of  transit.*  It  ig 
not  negligence  per  sc  for  the  driver  of  a  wagon  to  back  it 
across  the  sikowalk  in  order  to  unload  sacks  of  salt  into  a 
building.''  Whether  a  particular  obstruction  of  a  high- 
way is  reasonable  or  not  is  a  question  of  fact.'     Where 


1  Mathews  v.  Kelaey,  58  Me.  5G;  4 
Am.  Rep.  248. 

^  Haud  0.  Klinker,  54  N.  Y.  Sup. 
Ct.  4:]3. 

^  Attorney-General  v.  Sheffield  Gas 
Co.,  19  Eiig.  L.  &  Eq.,  CS!);  Graves  v. 
Sliattnck,  35  N.  H.  2ol;  CI)  Am.  Dec. 
53(i;  Hundliausen  v.  lioiid,  'Mi  Wis.  29; 
Strattuu  V.  Stai>les,  59  ile.  94;  Com. 
V.  Passniore,  1  Sorg.  &  il.  219,  the 
court  saying:  "It  i.s  true  that  neces- 
sity justilies  actif)nd  which  would 
otherwise  be  nuisances.  It  is  true, 
also,  that  this  necessity  need  not  bo 
absolute;  itiseuouj!;!!  ifitbc  reasonable. 
No  man  lias  a  right  to  throw  wood 
and  stones  into  the  struct  at  his  pleas- 
ure, iiut  inasmuch  as  I'uol  is  neces- 
sary, a  man  may  tlirow  wood  into  the 
street  for  the  purpo.su  i>f  having  it 
carried  to  his  liouse,  and  it  may  lie 
tiiere  a  reasonable  time.  So  becauae 
building  is  necessary,  stones,  bricks, 
lime,  sand,  and  othur  materials  may 
be  placed  in  the  street,  provided  it  bo 
doae  in  the  most  convenient  manner. 
On  the  same  principle,  a  merchant 
may  have  his  gooils  placed  in  the 
street  for  the  purpose  of  removing 
them  to  his  store  in  a  rcaisoiiable  time. 
But  he  has  no  right  to  keep  them  in 
the  street  for  the  pur[io>e  of  selling 
them  there,  because  there  is  no  neces- 
sity for  it."  In  a  leading  Ijiglish  case 
(Attorney-General  ik  Sheliield(^asC»., 
19  Eiig.  L.  &.  E4. ),  the chiiicellor  said: 
"  If  I  were  to  station  a  eait  in  a  stre^Jt, 
opposite  my  door,  obslruetiiig  the 
public  highway,  I  might  be  guilty  of 
a  nuisance,  for  iiuglit  i  know,  and  I 
might  be  liable  to  be  indicted;  but  it 
would  bo  a  sufficient  amwer  to  say 
that  the  cart  was  there  tmly  a  reason- 
able time,  and  for  a  liwfr.l  jiarposo.  If 
it  is  used  in  the  way  such  things  are  or- 
dinarily used,  it  cannot  be  a  nuisance 
so  to  use  it.  The  public  highway  ia 
for  the  convenience  of  mankind,  and 
so  to  use  it  cannot  be  a  nuisance. 
One  of  the  uses  ie.  that  a  person  trav- 
eling Mrith  a  cart  or  carriage  may  draw 


up  at  a  particular  door  and  get  down, 
according  to  hia  lawful  occupation. 
So,  again,  if  I  have  a  cart  come  to  my 
house  with  five  or  six  tons  of  coal,  of 
course  it  would  be  some  time  obstruct- 
ing the  public  highway;  but  it  is  ditB- 
cult  to  maintain  that  in  an  ordinary 
street  that  would  be  a  nuisance.  All 
these  cases  of  nuisance  or  no  nuisance, 
arising  from  particular  acts,  must, 
from  the  nature  of  things,  be  governed 
by  particular  circumstances.  Now,  if 
a  carriage  were  to  drive  up  in  Belgrave 
S(piare  and  stand  half  a  day  at  the 
door  of  a  house,  waiting  for  some 
person  calling  there,  I  do  not  think 
that  that  could  be  made  out  to  be  a 
nuisance.  It  may  be  said,  '  You  staid 
there  an  unreasonable  time.'  It  may 
be  so,  but  it  would  be  difficult  indeed 
to  make  out  that  that  was  a  nuisance, 
liut  suppose  the  same  thing  happened 
in  the  street  that  runs  from  Covent 
(iarden  to  St.  Martin's  Lane;  a  man 
calling  there  and  saying,  'I  mean  to 
have  a  chat  for  lialf  an  hour,'  I  do  not 
know  that  that  would  not  be  a  nui- 
sance. You  nmst  be  guided  l)y  the 
particular  circumstances;  you  must 
look  at  the  particular  place  or  oliject 
that  the  parties  have  in  view.  I  lake 
it,  that  all  these  questions  are  of  tiiis 
nature:  Are  you  using  the  matter 
which  is  the  subject-matter  of  i!i'[uiry 
ill  a  reasonable  way?  and  are  those  the 
u^es  lor  which  it  was  contemplate.  1?" 
"Very  much  depends  upon  the  hiual- 
ity,  the  width  of  the  highway,  and  the 
time  it  may  be  obstructed  by  the  al- 
leged nuisance.  What  would  ho  a 
reasonably  free  passage  for  the  pul)lic, 
what  would  be  a  reasonably  safe  and 
convenient  road  for  the  accommudatiou 
of  the  public  travel,  in  a  reiiuite, 
sparsely  populated  rural  district, 
might  and  generally  would  not  bono 
in  a  compact  city  or  a  large  and  poim- 
lous  village.  So,  too,  in  a  village  or 
city,  what  would  be  no  obstruction  in 
a  broad  street  little  frequented  might 
be  very  objectionable,  ii  not  au  also* 


2036 


2037 


INJURIES   ON   REAL  PROPERTY. 


§1164 


Itig 

)ack  it 

into  a 

I  higli- 

Where 

ret  down, 
jcupation. 
unc  to  my 
of  coal,  oi 
3  obstruct- 
;  it  if!  «litli- 
1  ordinary 
aucc.     All 
0  imisancu, 
cts,    must, 
e  governed 
i.    Now,  if 
lu  Bclgrave 
day  at  the 
r   for   aome 
)  not  think 
3Ut  to  be  a 
'  You  staid 
e.'    It  may 
icult  indeed 
a  nuisance, 
ig  happened 
toin  Covent 
ue;  a  man 
L  mean  to 
ar,'  I  do  not 
)t  be  a  nui- 
.ded  by  the 
you   must 
.ce  or  olijcet 
ew.     I  lake 
.  are  of  this 
the   matter 
r  of  iu'iuiry 
ire  those  the 
lemplatc'i'.'" 
tho  lical- 
vay,  and  the 
1  by  the  al- 
irould    he  a 
the  puhlic, 
^ly  safe  and 
ommodatiou 
a  remote, 
d      district, 
[d  not  he  so 
-e  and  popu- 
[a  village  or 
istruction  in 
)nted  might 
Lot  wi  abso- 


the  use  of  the  highway  is  regulated  by  ordinance,  one 
following  the  directions  of  the  ordinance  is  not  liable  for 
any  damages  caused  by  the  obstruction/  while  one  vio- 
lating the  ordinan  ie  will  he.^  Persons  making  use  of  a 
highway  for  games  or  sports  dangerous  to  travelers  are 
liable  for  all  damages  occasioned  thereby.  They  are  liable 
as  joint  trespassers  for  an  injury  done  by  one  of  them  in 
accidentally  striking  a  traveler  with  the  ball  in  the  course 
of  the  game,  where  the  highway  is  so  narrow  as  to  make 
the  playing  of  such  games  there  dangerous  to  travelers.^ 

Illustrations.  —  Defendants,  occupants  of  a  store,  placed 
skids  reaching  from  the  door  across  the  sidewalk  to  a  vehicle 
in  tlie  street  for  the  purpose  of  loading  kegs  of  merchandise 
containing  about  five  gallons  each,  and  each  weighing  less  than 
fifty  pounds.  The  plaintiff,  lawfully  walking  upon  the  sidewalk, 
in  trying  to  cross  the  skids,  fell  and  was  injured.  Hcld^  that 
tho  (questions  of  negligence  and  contributory  negligence  were 
for  tlio  jury,  and  "■  demurrer  was  erroneously  sustained:  Jochem 
V.  Hnhinson,  66  Wis.  638;  57  Am.  Rep._298.  Defendant,  for  the 
jjiirpose  of  removing  merchandise  from  his  store  in  the  city  of 
New  York,  laid  skids  from  a  truck  across  the  sidewalk  to  the 
steps.  They  had  been  there  a  few  minutes,  when  the  plaintiff, 
coming  along  the  sidewalk,  attempted  to  pass  around  the  skids 
by  tho  steps,  and  slipped  upon  the  steps  and  was  injured. 
Held,  that  defendant  was  not  bound  to  see  that  the  steps  were 
in  an  absolutely  safe  condition  for  travel,  and  that  the  plaintifiP 
wiis  not  entitled  to  recover:  Welsh  v.  Wilson,  101  N.  Y.  254;  54 
Am.  Ilep.  698.* 


hite  nuisance,  in  a  narrow  business 
tiiorouglifaro":  Graves  v.  Shattuck, 
3JN.  U.  2J7;  69  Am.  Dec.  536. 

'  Wood  V.  Mears,  12  Ind.  515. 

■^  Wcick  V.  Lander,  75  111.  93. 

*  Vdsburgh  V.  Moak,  1  Cush.  453; 
4SAm.  Dec.  613. 


of  minutes  or  to  cross  the  street  and 
pass  upon  the  other  sidewalk,  or  to 
pass  around  tho  truck  in  the  street,  or 
to  take  the  way  she  selected.  The 
defendant  was  under  no  obligation  to 
furnish  her  a  safe  passage-way  around 
the  obstruction:    People  v.  Cunning- 


Eiiil,  .T.,  saying:  "The  defendant    ham,  I  Denio,  530;  Commonwealths, 

Passmore,  1  Serg.  &  R.  219;  Peoples. 
Horton,  64  N.  Y.  610.  The  defendant 
owed  the  plaintiff  no  duty  to  see  tliat 
its  steps  were  in  an  absolutely  safe 
condition  for  travel,  and  it  does  not 
appear  that  they  were  dangerous  under 
such  circumstances  as  to  charge  him 
with  carelessness,  even  if  that  would 
have  been  sufficient  to  impose  any  lia- 
bility upon  him  in  this  case." 


had  tile  riglit  to  place  the  skids  across 
the  si(K;walk  temjjorarily,  for  the  pur- 
pose (if  removing  the  cases  of  mcr- 
ciiiindisu.  Every  one  doing  business 
along  a  .street  in  a  populous  city  must 
liave  sucii  a  right,  to  be  exercised  in 
a  riasoiialde  manner,  so  as  not  to  un- 
necessarily encumber  and  obstruct  the 
siilewalk.  When  tho  plaintiff  found 
tliis  oljstruction  in  her  pathway  she 
Lad  the  optiou  either  to  wait  a  couple 


§1165 


KEGUGENCE. 


2038 


CHAPTER  LX. 

INJURIES  ON  HIGHWAYS. 

§  1165.  Injuries  while  driving  on  the  highway  —  Liability  in  general. 

§  1166.  Law  of  the  road  —  Keeping  to  the  right. 

§  1167.  Pedestrian  and  vehicle  —  Horaemen. 

§  1168,  Collisions  with  runaway  horses. 

§  1169.  Contributory  negligence  on  highways — Duty  to  look  for  defects  .'<nci 

dangers. 

§  1170.  What  is  and  what  is  not  proper  use  of  highway  by  traveler. 

§  1171.  Rate  of  speed —  Manner  of  driving. 

§  1172.  At  night. 

§  1173.  Skittish  or  scared  horse —  Defective  vehicle  or  harness. 

§  1174.  When  plaintiff  has  knowledge  of  defect. 


§  1165.  Injuires  while  Driving  on  the  Highway — Lia- 
bility in  General. — A  traveler  ou  the  highway  is  liable 
for  any  injury  which  he  may  cause  to  another  by  want  of 
care  on  his  part;  i.  e.,  want  of  such  care  as  ordinarily 
prudent  and  skillful  men  would  use  under  the  same  cir- 
cumstances.*  Great  care,  it  is  said,  should  be  used  in 
driving  a  carriage  through  a  crowded  street.^  From  tlie 
mere  happening  of  an  accident  between  travelers  on  the 
highway,  no  presumption  of  negligence  on  the  part  of 
either  arises;  the  plaintiff  must  therefore  prove  that  the 
defendant  was  negligent,'^  and  that  his  own  carelessness 
did  not  contribute  to  the  injury.*  The  question  of  negli- 
gence is  a  question  for  the  jury.*     But  the  judge  will  not 


'  Hawkins  v.  Riley,  17  B.  Mon.  101; 
Center  v.  Finney,  17  Barb.  94,  Selden's 
Notess  80;  Parker  v.  Adams,  12  Met. 
415;  46  Am.  Dec.  694;  McDonald  v. 
Snelliag,  14  Allen,  290;  92  Am.  Dec. 
708;  Lane  v.  Bryant,  9  Gray,  245;  69 
Am.  Dec.  283.  And  the  same  rule 
applies  to  a  traveler  on  a  private  way: 
Danforth  v.  Durell,  8  Allen,  242. 

^  Vaughn  v.  Scade,  30  Mo.  600. 

s  Cotton  V.  Wood,  8  Com.  B.,  N.  S., 
568;  Lane  v.  Crombie,  12  Pick.  177; 
Parker   v.  Adams,   12  Met.   415;  46 


Am.  Dec.  694;  Schmidt  v.  Harkiiess, 
3  Mo.  App.  385. 

*  Dressier  1'.  Davis,  7  Wis.  527;  Lime 
V.  Crombie,  12  Pick.  177. 

*  Schionfeldt?;.  Norria,  115  Miiss.  17; 
Templeman  v.  Haydon,  12  Com.  K 
507:  Sheehan  v.  Edgar,  58  N.  Y.  (i:!l; 
Vincent  v.  Stinehour,  7  Vt.  O'.';  '."J 
Am.  Dec.  145;  Wakeman  v.  Robinson, 
1  Bing.  213;  8  J.  B.  Moore,  03;  Brooks 
V.  Schwerin,  54  N.  Y.  343;  Munrou  v. 
Leach,  7  Met.  274. 


2039 


INJURIES   ON   HIGHWAYS. 


§1165 


be  justified  in  leaving  the  case  to  them  where  the  plain- 
tiff's evidence  is  equally  consistent  with  the  absence  as 
with  the  presence  of  negligence  in  the  defendant.'  It  is 
proper  to  tell  them  that  if  they  believe,  from  the  evidence, 
that  the  injury  was  caused  by  the  negligence  or  fault  of  the 
defendant  driver,  witliout  any  greater  want  of  care  or  skill 
on  the  part  of  the  plaintiff  driver  than  could  reasonably 
be  expected  of  a  person  of  ordinary  prudence  and  skill 
iu  such  a  situation,  the  plaintiff  is  entitled  to  recover.^ 
It  is  not  negligence  per  se  to  drive  a  team  at  a  "lively 
trot"  in  the  streets  of  a  city.  One  so  driving  is  not  limited 
to  any  particular  rate  of  speed,  but  is  bound  simply  to  use 
proper  care  not  to  injure  other  persons  lawfully  upon  the 
streets.^  If  damages  are  inflicted  by  reason  of  the  break- 
ing of  the  carriage  or  harness  of  a  traveler  on  the  high- 
way, the  traveler  or  owner  of  the  harness  or  vehicle  is  liable 
only  on  the  principle  of  want  of  ordinary  care.  It  must 
be  shown  by  the  plaintiff  that  he  knew,  or  might  Avith 
reasonable  diligence  have  known,  of  the  defect,  and  was 
negligent  in  not  repairing  it.*  The  mere  fact  that  a  wheel 
comes  off,  or  that  an  axle-tree  breaks,  is  not  negligence 
per  se.° 

The  fact  that  the  plaintiff  was  at  the  time  of  the  acci- 
dent violating  the  law  will  not  prevent  him  from  recovering 
if  the  defendant  could  nevertheless  have  avoided  the  in- 
jury by  the  exercise  of  ordinary  care;"  as,  for  instance, 
where  he  was  driving  at  an  unlawful  rate  of  speed ;^  or 
without  the  number  of  bells  required  by  a  statute;^  or 
racing  for  a  wager;"  or  traveling  on  Sunday;*"  or  suffering 
his  vehicle  to  stand  crosswise  of  the  road,  for  the  purpose 


1  Cotton  V.  Wood,  8  Com.  B.,  N.  S., 
568. 

■'  Coinsen  v.  Ely,  37  111.  338. 

» Crocker  v.  Ice  Co.,  92  N.  Y.  652. 

*  1  Thompson  on  Negligence,  381; 
Doylo  V.  VVragg,  1  Fost.  &  F.  7. 
See  Wei  ah  v.  Lawrence,  2  Chit.  202. 

'  Doylo  V.  Wragg,  1  Fost.  &  F.  7. 


*  Welch  V.  Wesson,   G  Gray,    505; 
Morton  V.  Gloster,  4(5  Me.  o'JO. 

'  Hall  V.  Ripley,  119  Mass.  135. 
8  Counter  v.    Couch,    8    Jilet.    43G; 
Kidder  (I.  Dunstable,  11  Gray,  'M2. 

*  Welch  r.  W.-.ssoj-.,  G  Gray,  505. 
'"Schmid  v.  UuMuhrey,   48  Iowa. 

652. 


§  1166 


NEOLIQENCE. 


2040 


of  unloading;'  or  stopping  in  his  pungin  a  traveled  street, 
waiting  for  two  of  his  acquaintances  to  swap  horses;'^  or 
suffering  his  ass  to  go  fettered  in  the  highway;'  or  leaving 
his  horse  standing  in  the  highway.* 

Illustrations. — A  driver  was  negligent  in  not  having:;  a 
"skid"  or  brake  to  check  his  wagon  when  going  down  hill, 
and  in  looking  at  his  horses  so  that  he  did  not  see  the  deceased 
until  he  was  within  three  yard3  of  him.  The  deceased  was  guilty 
of  some  negligence  in  attempting  to  cross  the  road  where  tliere 
was  no  regular  crossing.  Held,  tliat  his  representative  was  en- 
titled to  recover  if  the  defendant  could  nevertheless  have  avoided 
the  accident  bv  the  exercise  of  reasonable  care:  Sprinyett  v.  BuU, 
4  Fost.  &  F.  472. 


§  1166.  Law  of  the  Road — Keeping  to  the  Right.— 
By  the  law  of  the  road,  a  traveler  in  any  vehicle  in  pass- 
ing another  cjming  towards  him  must  keep  to  the  right.' 
Failing  to  keep  to  the»right  is  evidence  of  negligence  on 
his  part  in  case  of  a  collision,"  but  it  does  not  make  the 
party  absolutely  liable,  as  circumstances  may  make  it  ne- 
cessary to  drive  to  the  left,  instead  of  to  the  right.^  Where 
two  persons  meet  traveling  in  their  wagons  upon  the  high- 
way,  and  a  collision  takes  place,  and  one  of  them  is  thrown 
from  his  wagon  and  injured,  in  order  that  the  person  in- 
jured may  maintain  an  action  for  the  damages  sustained 
by  him,  the  injury  must  not  have  been  caused  by  any 
want  of  ordinary  care  on  his  part  to  avoid  it,  although  Le 
was  traveling  in  the  manner  prescribed  by  the  statute,  and 


1  Steele  v.  Burkhardt,  104  Mass.  59; 
6  Am.  Rep.  lltl.  Contra,  Stiles  v. 
Geesey,  7  Pa.  St.  4.S9. 

^  Bi-,'elow  V.  Reeil,  51  Me.  325. 

'  Davies  v.  Maun,  10  Mees.  &  W 
54G. 

*  Streett  v.  Laumier,  34  Mo.  469. 

MVilson  V.  Rocklaad  Mfg.  Co.,  2 
Harr.  (Del.)  67;  McLaiie  v,  Sharpe,  2 
Harr.  (Del.)  481.  This  common-law 
rule  is  ailopteil  by  statute  in  some 
states:  See  Mass.  Rev.  Stats.,  c.  51, 
sec.  1;  Mich.  Coinp.  Laws,  1871,  sec. 
2002;  Palmer  v.  Barker,  11  Me.  338; 
I  N.  Y.  Rev.  Stats.,  695,  sec.  1;  Fales 


V.  Dearborn,  1  Pick.  344.  As  to  the 
rule  when  both  are  going  in  the  same 
direction,  it  has  been  held  that  proof 
of  custom  is  not  admissible:  Bolton  v, 
Colder,  1  Watts,  360. 

"  Jones  V.  Andover,  10  Allen,  20; 
Goodhue  v.  Dix,  2  Gray,  181;  Spnfforcl 
V.  Harlow,  3  Allen,  176;  Clay  v.  \\\m\, 
5  Esp.  44;  Wayde  v.  Lady  Cfrr,  2 
Dowl.  &  R.  255.  See  Brooks  v.  Hart, 
14  N.  H.  307. 

■'  McLane  v.  Sharp,  2  Harr.  (Del.) 
481;  Strouse  v.  Whittlesey,  41  Conn. 
559;  Beckerlee  v,  Weiman,  12  Mo. 
App.  354 


2040 


2041 


INJURIES   ON  HIGHWAYS. 


§  1166 


street, 
lea;^  or 
Leaving 


aving  a 
(wn  tiill, 
Lloceas(Ml 
as  guilty 
ere  there 
?,  was  cn- 
D  avoi<lcMl 
it  v.  Ball, 


Right. - 

in  pass- 
le  right.* 
gence  on 
make  the 
ake  it  ne- 
'    Where 
the  high- 
is  thrown 
lerson  in- 
[sustained 
by  any 
|hough  lie 
,tute,  and 

Aa  to  the 
in  the  same 
Id  that  proof 
lie:  Boltou  v, 

Allen,  20; 
[81;  Siinffonl 
Jlay»'.  Wo(h1, 
laily  Ci'i-r,  2 
T)ok8  V.  Hart, 

iHarr.  (Del,) 
by,  41  Conn. 
Ln.  12  JIo. 


thfl  other  party  was  not.*  The  traveler  is  not  obliged  to 
go  to  the  extreme  right;  it  is  sufficient  that  ho  goes  far 
enough  for  the  other  to  pass  safely.^  Nor  need  a  traveler 
keep  on  the  right  side  of  the  road  all  the  time;  this  is  re- 
quired of  him  only  when  meeting  another  traTcler.'  A 
driver  on  the  wrong  side  of  the  road  must  use  greater 
care  than  if  he  was  on  the  proper  side.*  If  he  is  on  the 
wrong  side  of  the  road,  ho  must  give  way  to  a  vehicle  on 
the  right  side.^  The  duty  under  a  statute  to  turn  to  the 
right,  it  is  held,  does  not  apply  where  one  vehicle  is  go- 
ing along  a  street  into  which  another  is  turning  from  a 
cross  street,^  nor  where  two  vehicles  meet  at  the  intersec- 
tion of  two  streets/  Under  a  statute  requiring  travelers 
meeting  each  other  on  the  highway  to  drive  to  the  right 
of  the  middle  of  the  traveled  part  of  the  road  or  bridge 
when  practicable,  it  is  the  duty  of  the  traveler,  when  it  is 
difficult  or  unsafe  for  him  to  drive  to  the  right,  to  stop  a 
reasonable  length  of  time  at  some  convenient  part  of  the 
road  to  enable  the  other  person  to  pass,  and  without  any 
request  from  him.*  The  fact  that  the  plaintiff  was  at  the 
time  of  the  collision  on  the  wrong  side  of  the  road  does 
not  prevent  his  recovering  if  the  defendant  could  never- 
theless, by  the  exercise  of  ordinary  care,  have  avoided  the 
injury."  Nor  does  the  fact  that  the  defendant  is  thus  vio- 
lating the  law  of  the  road  entitle  the  plaiiititF  to  recover 
damages  of  him,  if  the  plaintiff  could  have  avoided  the 
colUsion  by  the  exercise  of  ordinary  care;  he  cannot  neg- 
ligently or  wantonly  run  into  the  defendant,  and  then 


'Kenuard  v.  Burton,  23  Me.  39;  43 
1  Am,  Dec.  249;  Parker  v.  Adams,  12 
I  Met.  415;  46  Am.  Dec.  694. 

"Wordsworth   v.    Willan,    5   Esp. 

Id. 

'  Parker  v.  Adams,  12  Met.  415;  46 
I  Am.  Dec.  694;  Daniels  v.  Clegg,  28 
I  Mich.  H2;  Palmer  v.  Barker,  11    Mc. 

i;  Wordsworth  v.  Willan,  5  Esp. 
1 213:  Brooks  v.  Hart.  14  N.  H.  307. 

'  Pluckwell  V.  Wilson,  5  Car.  &  P. 
315. 


*  Palmer  v.  Barker,  11  Me.  338. 

*  Lovejoy  v.  D(dan,  10  Ciish.  495; 
Smith  V.  Gardner,  1 1  Gray,  4 1 8. 

'  Garrigan  v.  Berry,  12  Allen,  84. 

8  Kennard  v.  Burton,  25  Mo.  39;  43 
Am.  Dec.  249.  And  see  Earing  v.  Lan- 
singh,  7  Wend.  185. 

'  Jones  V.  Andover,  10  Allen,  20; 
Clay  V.  Wood,  5  Esp.  44;  Chaplin  v. 
Hawes,  3  Car.  &  P.  555;  Simmouson  i\ 
Stellenmerf,  1  Edm.  Sel.  Cas.  194; 
Smith  V.  Gardner,  11  Gray,  418. 


§1166 


NEOLiaSNCE. 


2042 


make  him  pay  damages  for  the  resulting  harm  simply 
because  the  defendant  was  violating  the  law/  Persons 
meeting  on  highways  owe  to  each  other  reciprocal  duties, 
and  are  bound  to  use  reasonable  precautions  to  avoid  col- 
lision.'' 

The  law  of  the  road  or  the  statutes  of  this  country  do 
not  apply  as  between  a  person  on  horseback  and  a  vohi- 
cle,''  or   a   vehicle  and   a  pedestrian;*   nor   where   both 
vehicles  are  going  in  the  same  direction;*  nor  to  vehicles 
not  moving  or  passing;"  nor  to  buildings  that  arc  being 
moved  through  a  public  highway.'     When  a  driver  at- 
tempts to  pass  another  going  in  the  same  direction  on  a 
public  road,  ho  does  so  at  his  peril.     At  least,  he  must  be 
responsible  for  all  damages  which  he  causes  to  the  one 
whom  he  attempts  to  pass,  and  whose  right  to  the  proper  I 
use  of  the  road  is  as  great  as  his,  unless  he  is  guilty 
of  such  recklessness,  or  even  gross  carelessness,  as  would 
briui;   disaster   upon   himself.^     The   Michigan    statute, 
adoi)tc(j  from  Massachusetts,  enacts  that  the  traveler  sliull 
"  seasonably  drive  his  carriage  or  other  vehicle  to  the 
right  of  the  middle  of  the   traveled  part  of  such  bridge 
or  roud,  so  that  the  respective  carriages  or  other  vehicles 
aforesaid    may   pass   each    other   without    interfere ii(e." 
The  "traveled  part"  of  the  road  was  formerly,  in  Mas- 
sachusetts, held  to  mean  that  part  which  is  wrought  for 
traveling,  and  was  not  confined  simply  to  the  most  trav- 
eled wheel-track,  or  to  any  track  which  might  luippen  toj 
be  made  in  the  road  by  the  passing  of  vehicles;"  and  tliei 
supreme  court   of  Michigan,  adopting  with    the  statute 


•  Parkur  v.  Adams,  12  Met.  415;  46 
Am.  Dec.  094;  Kennard  v.  Burton,  25 
Mo.  .39;  43  Am.  Dec.  249;  Daniels  v. 
Clegg,  2S  Mich.  .32. 

^  OMalJcy  v.  Dorn,  7  Wis.  236;  73 
Am.  Dec.  403. 

3  Dudley  V.  Bollas,  24  Wend.  465. 
A  liter  ill  llngliund:  Turleyw.  Thomas, 
8  Car.  &P.  103. 

♦  Cotterill  v.  Starkey,  8  Car.  &  P. 
Cdl. 


"Bolton  V.  Couler,  1  Watts,  M]\ 
Mayhew  v.  Boyce,  1  Stark.  42;};  1m'  [ 
ter  V.  Goddard,  40  Me.  04. 

^  Johnson  v.  Small,  5  B.  Mem.  25. 

'  Graves  v.  Shattuck,  35  N.  H.  I'J";  | 
69  Am.  Dec.  537. 

*  Aveguo  V.  Hart,  25  La.  Ann.  235;  | 
13  Am.  Ilep.  133. 

•Clark  V.  Commonwealth,  4  Pick. I 
125;  Jaquith  v.  Richardson,  8  Met,! 
213. 


'  Daniela 
.    •  C'uminoii 
1 403. 
'  Earing 
'Smith  V, 
iJaquith  v.  1{ 
I   "  Brooks  V 
I  Barkers  Sa' 
lh>.  GO;  Be 

|2^J;i:5Ain. : 

1 3  Jones  &  S. 


2043 


INJURIES   ON  HIGHWAYS. 


§1107 


the  construction  which  had  been  previously  put  upon  it 
by  the  Massachusetts  court,  adheres  to  the  saino  view/ 
though  the  Massachusetts  court  holds  that  the  statute  im- 
poses an  obligation  to  turn  to  the  right  of  tho  middle, — 
not  of  the  wrought  part  of  tho  road,  but  of  tho  part  trav- 
eled by  wheels.^  A  statute  requiring  travelers  meeting 
each  other  to  "  seasonably  turn  their  carriages  to  the 
right  of  the  center  of  the  road"  means  to  tho  right  of 
the  center  of  the  wrought  part  of  tho  road,  although  the 
^^•holo  of  tho  smooth  or  most  traveled  part  may  be  on 
tlio  side  of  that  center.'  But  when  tho  wrought  part  of 
the  road  ia  obscured  by  snow,  so  that  the  traveler  may 
not  know  where  it  really  lies,  it  will  be  sufficient  for  the 
traveler  to  turn  to  the  right  of  the  center  of  tho  beaten  or 
traveled  track,  without  reference  to  the  wrought  part.* 

Illustrations.  —  A  person  was  driving  a  vehicle  at  night  at 
a  fa^t  rate,  and  on  tho  wrong  side  of  the  road.  Held,  no  de- 
fense in  an  action  against  him  for  a  collision  that  ho  did  not 
have  time  after  discovering  the  approaching  vehicle  to  turn  out. 
H'mmonson  v.  Stellenmerf,  1  Edm.  Sel.  Cas.  194. 

§  1167.  Pedestrian  and  Vehicle  —  Horseman. — Pedes- 
I  trians  and  vehicles  have  equal  rights  on  the  highway,  and 
of  each  is  required  such  care  and  diligence  as  is  necessary 
to  prevent  or  escape  injury.®  To  render  the  driver  or 
master  of  the  vehicle  liable,  there  must  be  some  proof  of 
negligence  on  his  part.  The  court  will  not  send  the  case 
to  tho  jury  when  the  plaintiff's  evidence  is  equally  consist- 
ent with  the  absence  as  with  the  presence  of  negligence 


1  Daniels  v.  Clegg,  28  Mich.  32,  44. 

-  Coiumoiiwealth  v.  Allen,  11  Met. 
1403. 

"Earing  v.  Lansingh,  7  Wend.  185. 

'Smith  V.  Dygcrt,  12  Barb.  G13; 
[Jaquitli  ('.  Kichardson,  8  Met.  213. 

'  Brooks  ?'.  Schwerin,  54  N.  Y.  343; 
iBarker  r.  Savage,  45  N.  Y.  191 ;  6  Am. 
I  Rep.  OG;  Belton  v.  Baxter,  54  N.  Y. 
1245;  13  Am.  Rep.  578;  Myers  v.  Dixon, 
1 3  Jones  &  S.  390;  Springett  v.  Ball,  4 


Fost.  &  F.  472;  Quirk  v.  Holt,  99 
Mass.  104;  96  Am.  Dec.  725.  A  com- 
pany having  "right  of  way  while 
going  to  a  fire  "  ia  not  thereby  relieved 
from  liability  for  an  injury  caused  by 
its  negligence:  Newcouib  v.  Boston 
Protective  Departuieut,  14G  Mass. 
596;  4  Am.  St.  Rep.  354.  That  the 
driver  of  a  carriage  was  intoxicated  is 
relevant  on  the  question  of  his  care: 
Wynnv.  AUard,  5  Watta  &  S.  524. 


g  1167 


NEOLIOENCB. 


2011 


on  tlio  (lofendaut's  part.  Tho  caro  must  be  proportionato 
to  tho  (laui^er;  liciico  a  driver  must  be  more  alert  \v!i-  u 
approacliiiii^  a  crossing  then  when  away  from  one.'  \ 
pethistrian  has  a  right  to  cross  tho  street  at  a  place  oUur 
than  at  a  crossing,''  and  one  who,  failing  to  keep  a  look 
ahead,  runs  liim  down  is  liable.^  A  pedestrian  crossinr 
a  street  shouUl  look  both  ways  before  making  the  attcmiit, 
and  failing  to  do  so  will  amount  to  contributory  nv^Yu 
gence/  or  at  least  will  bo  strong  evidence  of  it/'  Fu,,;. 
men  have  no  superiority  of  right  at  street  crossings  over 
teams;  they  luive  tho  right  in  common,  eacli  equally  with 
the  other,  and  in  its  exercise  are  bound  to  use  reasonublo 
care  for  their  own  safety,  and  to  avoid  doing  injury  to 
any  others  who  may  be  in  tbo  exercise  of  tho  equal  right 
of  way  witli  thom."  A  charge  that  ordinarily  thi;  law- 
requires  the  same  diligence  from  the  driver  of  a  carriage 
as  from  a  foot-passenger  is  erroneous.'' 

A  person  on  foot  or  on  horseback  cannot  compel  a 
teamster  who  has  a  heavy  load  to  leave  tho  boaton 
part  of  the  road,  if  there  is  sufficient  room  to  pass;  aivl 
this  rule  applies  where  a  person  on  horseback  meets  a 
buggy,  carrying  three  persons,  drawn  by  a  single  linrso,' 
A  person  who  while  walking  on  a  sidewalk  is  injured  hy 
a  wagon  backing  upon  it  is  not  eontributorily  negligent 
merely  because  ho  failed  to  take  to  the  street.  He  iiad  :i 
right  to  the  use  of  tho  sidewalk,  and  was  under  no  oMi^ii. 
tion  to  surrender  it  to  tho  defendant's  wagon,  whicli  uua 

1  Williams  v.  Richards,  3  Car.  &  K.  foro  attempting  to  cross  the  trad;  <■{ 

81;  Barker  ?'.  S:iva<^e.  45  N.  Y.  194;  G  a  railroad  does  not  as  a  matter  of  liw 

Am.  Rep.  GG;  Murphy  v.  Orr,  9G  N.  attach  to  one  who  is  about  to  piiss  fnnii 

Y.  14.  one  side  to  another  of  a  city  .stiwt; 

^  Cotterill  v.  Starkey,  8  Car.  &  P.  Moebus  v.  Herrmann,  108  X.  Y.  ;U;i; 

691;  Raymond  v.  Lowell,  G  Cush.  524;  2  Am.  St.  Rep.  440. 

63  Am.  Dec.  57;  Moebus  I'.  Herrmann,  *  Williams    v.    Grcaly,    ll'J    Masj, 

108  N.  Y.  349;  2  Am.  St.  Rep.  440.  79. 

»  Si)riiigett  e.  Ball,  4  Fost.  &  F.  472;  «  Barker  v.  Savage,  45  X.  Y.  I'Jl; 

Simons  i:  Gaynor,  89  Ind.  165.  6  Am.  Rep.  66;  Bilton  v.  Buxtor,  .ji 

*  Barker  i\  Savage,  1  Sweeny,  288;  N.  Y.  245;  13  Am.  Rep.  578. 

45  N.  Y.  191;  G  Am.  Rep.  66.     The  '  Carter  v.  Chambers,  79  Ahi.  j:!, 

duty  to  look  up  and  down  a  street  be-  ^  Beach  v.  Parmeter,  23  Pa.  .St.  I'Jii. 


20-U 


'201.") 


INJURIES    ON    IIIQIIWAYS. 


g  11C7 


jrtiouiito 
ort  \vli«'u 
oiu!.'  A 
act'  oUh  r 
cp  a  I'ltik 

0  iitteniiit, 
ory  iu!;ji;li. 
it/'     Font- 
sings  over 
[ually  with 
leasoimblo 
r  injury  10 
3quul  ii,^lit 
,ly   tho  l;i\v 
r  a  carriage 

t  compel  a 
tho  bcaton 
o  pass;  au'l 
,ck  mei'ts  a 
)iglo  horse,' 

injuri'il  liV 
.y  negliL^cnt 
lie  hail  a 
|r  no  ohlii^ii- 

which  \vii3 

kss  the  track  "i 
la  mutter  (ifliw 
ioutti>i^);is.s  t'riim 
|{  a  city  strc  l: 
llOS  N.  Y.  ;U'J; 

[\y,    11 '2    Mass, 

45  N.  Y.  I'.'l; 
In  V.  Baxter,  A 
in.  578. 
L,  70  Ah.  •--^: 
I  23  Pa.  St.  I'Jo. 


wrongfully  on   the  sidewalk.'     A  person,  though  infirm 

from  disease,  1ms  a  right  to  walk  in  tho  carriage-way  if 

lu>  pleases,  and  is  entitled   to  tho  exercise  of  reasonable 

(■iro  on  the  part  of  tho  drivers  of  vehicles.^     One  is  not 

„Mi^od  to  look  behind  him  for  vehicles.^     Where  vehiclea 

iiv  fallowing  each  other  closely  in  tho  streets  of  n  city,  a 

fdot-pussenger  is  not  entitled  to  hazard    tho  result  of  a 

uico  calculation  as  to  whether  he  can  pass  between;  to  do 

^o  is  negligence,  and  if  in  tho  attempt  he  is  injured,  he 

(iiunot   recover.*     A  horseman  should  yield   the  road  to 

the  driver  of  a  vehicle.'^     But   a   traveler  on  horseback 

meeting  another  horseman  or  a  vehicle  is  not  required 

to  turn  in  any  particular  way  to  avoid  collision;  ho  must 

(xcrciso  duo  care  under  tho  circumstances."     A  bicycle  is 

a  "carriage,"  within  tho  meaning  of  a  statute  providing 

itlmt  "if  any  person   driving  any  sort  of  carriage  shall 

Idi'ivo  tho  same  furiously,  so  as  to  endanger   tho  life  or 

limb  of  any  passenger,  every  person  so  offending"  is  liable 

to  pay  a  fine.'     Persons  laboring  upon   tho  highway  are 

[(ntillcd  to  protection  as  against  passing  vehicles.     The 

same  rules  apply  between  such  laborers  and  the  traveling 

Ipublic  as  between  travelers  generally,  and  the  former  are 

lliound  to  keep  watch  of  tho  approach  of  the  latter.®     The 

llaborcr  must  so  dispose  of  his  materials  that  passing  ve- 

jliicles  will  not  be  liable  to  injure  him.® 

Illustrations. — A  woman  was  crossing  Ninth  Avenue,  in 
Itlie  city  of  New  York,  at  the  Twenty-second  Street  crossing, 
[from  tlio  west  to  the  east  side.  When  near  the  east  side,  she 
ifai<  intercepted  by  a  passing  truck.  She  stopped  on  the  cross- 
ralk  to  let  the  truck  pass,  when  a  horse  and  wagon  belong- 
ing to  the  defendants,  in  charge  of  a  boy,  who  was  driving 

• 

■  Now  Jersey  Ex.  Co.  v.  Nichols,  33  '  Washburn  v.  Tracy,  2  D.  Chip.  128; 

'  !.  L.  434;  1)7  Am.  Dec.  722.  15  Am.  Dec.  661. 

M)o,ss    V.    Litton,    5     Car.    &    P.  *  Dudley  v.  BoUes,  24  Wend.  465. 

"  ^  Taylor  v.  Goodwin,  27  Week.  Rep. 

, '  Undhejem  v.  Hastings,  38  Minn.  489. 

|8J.  8  Quirk  v.  Holt,  99  Mass.  164;  96 

i  •  Helton  V.  Baxter,  54  N.  Y.  245;  58  Am.  Dec.  725. 

f  Y,  411.  »  Pry  or  v.  Valer,  9  Phila.  95. 


§  1168 


NEaLIGENCE. 


2046 


fast,  came  diagonally  across  the  avenue,  struck  her,  and  she 
was  thrown  clown  and  injured.  She  heard  the  noise  of  the  lior^e 
and  wagon  when  within  a  few  feet  of  he",  raised  her  hands,  and 
called  to  the  boy;  but  he  neither  saw  nor  heard  her.  //(/(/,  that 
the  facts  justified  a  finding  of  negligence  on  the  part  of  the  de- 
fendants, and  of  no  contributory  negligence  on  the  part  tf  the 
plaintiff:  Shcehan  v.  Edgar,  58  N.  Y.  631.  An  old  woman  ofj 
sixty-four  years,  and  lame,  was  crossing  Third  Avenue,  in  New 
York  City,  at  ten  o'clock  in  the  morning.  The  driver  of  a  cart 
going  at  the  rate  of  four  miles  an  hour,  when  at  a  distance  of 
twelve  feet  from  her,  called  to  her,  which  call  was  heard  by  per- 
sons more  distant  from  the  cart  than  she,  but  she  nevertheless  I 
kopt  on,  and  was  run  dow  i  and  injured.  Held,  that  a  chaifre 
by  the  court  to  the  jury  to  the  effect  that  she  was  only  rt'(juirod 
to  look  ahead  along  the  crossing,  and  if  in  so  looking  she  dis- 
covered no  obstacle,  then  she  was  not  negligent  in  procoodnig 
to  cross,  was  erronjous:  Barker  ".  Savage,  1  Sweeny,  288;  45J 
N.  Y.  191.  While  an  omnibus  was  proceeding  at  a  iHudcrate) 
pace  on  a  street,  the  evening  being  dark,  and  snow  falling  fast,! 
the  wife  of  the  plaintifi^,  accompanied  by  another  woman,  at-j 
tempted  to  cross  the  road  (not  at  any  ordinary  crosRing-])lace) 
in  front  of  the  omnibus;  but,  alarmed  by  the  approacli  of  aii-i 
uther  vehicle  from  the  opposite  direction,  turned  back,  and  wrA 
knocked  down  and  run  over  by  the  omnibus  before  she  coiildl 
regain  the  pathway,  and  so  injured  that  she  died.  The  de-l 
feudant's  omnibus  was  on  its  right  side,  and  within  seven  orj 
eight  feet  of  the  curb.  The  only  circumstance  whicii  was  at  all! 
suggestive  of  negligence  on  the  part  of  the  defendant's  servarJ 
was,  that  though  he  saw  the  woman  cross  in  front  of  his  ouini-r 
bus,  he  ha<l,  at  the  moment  they  turned  back,  looked  round  ti 
speak  to  the  conductor,  and  was  not  aware  of  their  danger  iintilj 
warned  by  tlie  cry  of  a  by-stander,  but  too  late  to  avert  the  iiiisj 
chief.  Held  that  there  was  no  evidence  of  negligence  tofioti 
the  jury:  Cottoa  v.  Wood,  8  Com.  B.,  N.  S.,  568.  A  cit}  oniij 
nance  permitted  the  occupants  of  stores  on  streets  where  lioije' 
car  tracks  were  close  by  the  sidewalk  to  occupy  a  ])art  of  tlij 
sidewalk  with  a  "cart  or  other  vehicle."  Defendant  was  m. 
an  occupant,  and  the  horse  attached  to  his  vehicle  food  on  tlij 
sidew'ilk.  Plaintiff  slipped  and  fell  against  tlie  horse'.s 
Tiiu  iiorse  raised  his  leg  and  brought  his  hoof  down  on  plaintili'j 
ankle.  Held,  that  an  action  for  the  injury  would  not  lie:  Mci 
v.  Fitzglbbons,  102  N.  Y.  362. 


§1168.     Collisions  with  Runaway  Horses. —Tlu.t 
horse  runs  away  upou  a  highway  is  not  ecu  elusive  evi 


2047 


INJURIES  ON  HIGHWAYS. 


§1168 


dence  of  negligence  on  the  part  of  its  owner  or  custodian; ' 
but  it  is  evidence  of  negligence.'^  If  the  defendant  lost 
control  of  his  horse  in  consequence  of  his  own  prior  fault, 
he  cannot  excuse  himself.^  If  the  injury  was  the  result 
of  racing,  or  driving  a  fast  horse  in  the  streets  of  a  city 
at  a  high  rate  of  speed,  the  defendant  may  bo  liable  for 
exemplary  damages.'*  It  is  not  negligence  jjcr  se  to  leave 
a  horse  unhitched  in  a  street  of  a  city.  It  must  appear 
that  the  horse  was  of  a  restive  character,  or  of  vicious 
propensities,^  or  that  no  one  was  left  to  observe  him,  or 
other  like  circumstances;  and  here  the  question  of  neg- 
hgence  is  left  to  the  jury.®  If  the  horse  is  left  unhitched, 
but  in  the  care  of  a  proper  person,  and  it  breaks  away  in 
consequence  of  bemg  frightened  by  a  passing  show,''  or  by 
falling  icicles,^  a  person  injured  by  the  horse  in  running 
away  cannot  recover.  But  it  may  be  negligence  to  leave 
it  in  the  care  of  a  small  boy,"  or  to  hitch  horses  by  the 
lines  to  a  rubber  block,  within  ten  feet  of  a  railroad 
switch.'"  And  where  there  is  a  city  ordinance  requiring 
horses  in  the  street  to  be  hitched,  the  fa  "are  to  do  so  is 
negligence." 


'^b"&^ 


Illustrations.  —  A  person  lawfully  at  work  upon  a  public 
Btreet  of  a  city  without  fault  on  his  part  suffered  damages  from 
a  te;an  harnessed  to  a  baggage-wagon  running  away.  HchJ, 
that  the  owners  were  liable,  it  appearing  that  their  driver  and 
gervant  was  negligent  in  leaving  the  team  standing  on  the  pub- 
lic street  insecurely  hitched  and  unattended  while  ho  was  car- 
rying a  trunk  from  the  wagon  to  a  house  twenty  or  thirty  feet 
distant:  Moidton  v.  Aldrich,  28  Kan.  300.  The  driver  of  .i  car- 
riage used  for  the  conveyance  of  passengers  for  hire  left  his 


'Kennedy  v.  Way,  Brightly,  186; 
Gottwjild  V.  Bernheimer,  6  Daly,  212; 
Qiiitikiti  V.  li.  R.  Co.,  4  Daly,  487;  Fur- 
loiii^r  11.  R.  Co.,  MS.,citedGDaly,  214; 
Griggs  ('.  Fleckensteia,  14  Minn.  81; 
100  Am.  Dec.  199;  Streett  v.  Laumier, 
34  Mil.  4(59. 

-  Hiininiell  v.  Weater,  Brightly,  133; 
Stum-,1  r.  Ellens,  22  Wis.  432. 

'^  Kennedy  v.  Way,  Brightly,  186. 

*  Kennedy  i>.  Way,  Brightly,  186. 

*  Albert  a.  B.  R.  Co.,  2  Daly,  38a 


^  Griggs  v. 


Fleckenstuin,  14  Minn. 
81;  100  Am.  Dec.  199;  Streett  r.  Lau- 
mier, 34  Mo.  469;  Albert  v.  R.  R.  Co., 
2  Daly,  389. 

'  Goodman  v.  Taylor,  5  Car.  &  P. 
410. 

"  Bigelow  V.  Reed.  51  Mo.  .325. 

•  Fraser  ?".  Kimler,  2  Hun.  514. 

'"  Wagner  v.  Goldsmith,  78  Ind.  517. 

"  Sieinersu  Eiseu,  54  C;d.  418;  L>ott 
V.  Pratt,  33  Minn.  323;  53  Am.  Rep. 
47. 


■■Mai 


MR 


§1169 


NEGLiaENCE. 


2048 


carriage  with  the  houses  attached  thereto  and  unhitched  while 
he  entered  a  hotel.  No  one  was  left  in  charge  of  the  horses. 
Before  his  return  they  ran  off,  and  one  of  the  passengers  in  at- 
tempting to  leap  from  the  carriage  was  injured.  Held,  liable. 
Youmans  v.  Padden,  1  Mich.  N.  P.  127.  Defendant's  horses, 
while  being  driven  by  him  with  due  care  on  a  public  higliway, 
were  frightened  by  a  locomotive,  became  unmanageable,  and 
ran  upon  plaintiff's  land  and  broke  a  post  there.  Held,  that 
tlie  defendant  was  not  liable:  Brown  v.  Collins,  53  N.  II.  442; 
16  Am.  Rep.  372. 

§  1169.  Contributory  Negligence — Duty  to  Look  for 
Defects  and  Dangers.  —  A  person  cannot  recover  for  iu. 
juries  occasioned  by  a  defect  or  obstruction  in  the  high- 
way, wliere  he  did  not  use  ordinary  care  in  avoiding  the 
ol:. ruction  or  defect.'  On  the  principle  that  one  is  not 
obliged  to  presume  in  advance  that  another  will  be  ncgli- 
gent,  it  is  not  required  that  a  person  on  the  highway  shall 
have  his  eyes  constantly  upon  the  road  or  sidewalk  to  dis- 
cover  defects  there  or  dangers.'^  Therefore,  the  following 
do  not  in  law  amount  to  contributory  negligence:  That 
the  plaintiff  did  not  see  a  hole  in  the  sidewalk  because 
her  eyes  w^ere  not  upon  the  sidewalk  at  the  time;^  that 
the  plaintiff  might  have  seen  an  open  hatchway  in  the 
sidewalk  but  for  the  fact  that  his  attention  was  attracted 
in  another  direction;*  that  the  plaintiff  at  the  moment 
of  striking  lier  foot  against  a  misplaced  plank  in  the  side- 
walk allowed  her  attention  to  be  attracted  to  a  runaway 
horse  on  the  street;^  that  an  absorption  of  the  mind  in 
business  pijevented  a  defect  being  seen;"  that  he  was  hold- 
ing  the  reins  in  one  hand  and  assisting  his  boys  to  a  scat 


I  Smith  V.  Smith,  2  Pick.  621;  13 
Am.  Doe.  4ti4;  Johnson  v.  Whitefield, 
18  Me.  'JSG;  M  Am.  Due.  721;  King  v. 
Tlioi.ii)S(ni,  87  Pa.  St.  365;  30  Am. 
Rup.  .S(i4. 

-  Hill  V.  Seekonk,  119  Mass.  85; 
Koch  V.  Edge  water,  14  Hun,  544; 
Chirk  V.  Lockport,  49  Barb.  580; 
Hawks  I'.  Northampton,  121  Mass. 
10;  Gerald  r.  Boston,  108  Mass.  580; 
Woods  0.  Boston,  121  Mass.  337;  Jen- 


nings V.  Van  Schaick,  108  N.  Y.  530; 
2  Am.  St.  Rep.  459. 

3  Woods  V.  Boston,  121  Mass.  337; 
Barry  v.  Terkildsen,  72  Cal.  •J.)4;  1 
Am,  St.  Rep.  55. 

*  Barstow  v.  Berlin,  .34  Wis.  .357 
Houston  V.  Traphagen,  47  N.  .(.  L.'j;i. 

**  Weisenherg  v.  Appletou,  L'li  Wis. 
56;  7  Am.  Rep.  39. 

"DriscoU  V.  New  York^  11  llun, 
101. 


2048 


2049 


INTUTHES  ON  HIGHWAYS. 


§1169 


led  while 
le  horses. 
ers  in  at- 
'Id,  liable. 
,'8  hordes, 
highway, 
eable,  and 
Held,  that 
N.  H.  442; 


Look  for 

^er  for  iu- 

tlie  high- 

oiding  the 

one  is  not 

U  be  negli- 

fhway  shall 

valk  to  (lis- 

,e  following 

rence:  That 

^Ik  because 

tinie;^  that 

iway  i^^  the 

las  attracted 

.10  moment 

in  the  side- 

a  runaway 

lie  mind  in 

lie  was  hold- 

lys  to  a  scat 

108  N.  Y.530; 

|l'21  Mass.  3S"; 
■«2   Cal.  •2:A\  1 

I  u  Wis.  35; 

■47N.  .I.L.'-i3. 
pletoii,  'JiJ  ^^^s• 

loik.  11  U^i. 


with  the  other,  and  that  in  so  doing  his  attention  was 
diverted  from  the  control  of  his  team  and  the  condition 
of  the  highway;^  that  he  was  lying  down  upon  his  load 
wrapped  up  in  blankets.^     Neither  does  the  law  require 
that  the  thoughts  of  the  traveler  shall  be  till  the  time 
fixed  upon  even  those  defects  which  he  may  have  previ- 
ously noticed.'     It  is  not  negligence  per  se  for  the  occu- 
pant of  a  store  directly  opposite  a  sidewalk  encumbered 
by  the  abusing  owner's  improvements  to  pass  along  that 
walk    list  cad  of  the  unencumbered  one;''  nor  to  drive  in 
a  violent  storm  through  the  streets  of  a  city  with  which 
the  driver  is  unacquainted;^  nor  for  a  traveler  to  drive  his 
team  down  a  sti  r    ,  the  dangerous  condition  of  which  is 
concealed  by  a  ligh.  snow  just  fallen;  nor  is  the  fact  that 
he  is  the  only  person  that  has  passed  since  the  fall  of  the 
snow,  as  sh->wu  by  the  absence  of  any  tracks,  sufficient  to 
put  him  on  Li;  ^uard,  a  "id  oblige  him-to  examine  the  con- 
dition of  the  street  before  traveling  over  it."     One  lawfully 
in  the  street  of  a  city  with  his  team  is  not  necessarily 
guilty  of  contributory  negligence  in  failing  to  look  behind 
him  and  discover — as  he  might  have  done — a  runaway 
team  in  time  to  avoid  it.^     One  entering  a  narrow  and 
dark  alloy  is  bound  to  keep  his  eyes  open  and  about  him 
if  he  would  recover  for  an  injury  suffered  by  reason  of  a 
I  pitfall  in  such  a  place.^ 

Illustrations.  —  A  stands  on  a  street-corner  in  a  city,  and  a 
[cart  of  B,  loaded  with  lumber,  is  passing.  A  starts  to  cross  the 
htrcot.  and  at  the  same  time  the  cart  attempts  to  turn  the 
Icorner.  8ome  long  planks  extending  behind  the  cart  strike  A, 
[injuring  her.  Held,  that  A's  failure  to  observe  the  unusual  and 
Idangtru'i^'  appendage  to  the  cart,  and  to  calculate  the  sweep  it 
hould  make  in  turning  the  corner,  is  not  j)fr  i^e  contributory 
Inegligence:  Sheehy  v.  Burger,  02  N.  Y.  558.     The  plaintiff  ap- 


'C'Rinor  ('.  Portland,  36  Wis.  92. 

n'aii.sli  c.  Edun,  02  Wis.  272. 

Hi.iirge  ('.  Haverhill,  110  Mass. 
Pi:;Tli,mias  v.  W.  U.  Tel.  Co.,  100 
^Itos.  l.jtj;  Mahoucy  v.  R.  R.  Co.,  104 

iw.  73. 

U9 


♦  Stephens  v.  Macon.  8.3  Mo.  345. 
°  Milwaukee  t\  Davit!,  0  Wis.  377. 
«  Clark  V.  Lockport,  49  Barb.  580. 
^  Moulton  V.  Alilrioli,  28  Kau.  300. 

*  Lombacdti.  Cliicago,  4  Bitis.  4i>0. 


§1170 


NEGLIGENCE. 


2O50 


proaching  a  railroad  crossing  endeavored  to  turn  his  wngon 
around  to  avoid  a  train.     The  road  had  a  high  embankment  on 
each  side,  on  one  side  only  of  which  was  a  railing.     Tlio  i)Uiin- 
■if}"  observed  the  railing  on  this  side,  but  not  the  lack  of  it  on 
the  other.     In  backing  he  was  precipitated  over  the  unprotoctod 
side.     Held,  that  his  fiulure  to  look  on  both  sides  was  not  con- 
tributory negligence  perse:  Gillespie  v.  Newburgh,  54  N.  Y.  4(J8. 
The  owner  of  a  team  failed  to  chain  the  wheeia  of  his  hcavilv 
loaded  team  when  going  down  a  steep  hill.    J/cic/,  evidence  of  nog- 
ligence:  Aldrirh  v.  Monroe,  60  N.  H.  118.     Plaintiff  wbile  walk- 
ing on  a  sidewalk  five  feet  in  width,  in  the  enjoyment  of  sufTiciont 
light  and  such  eyesight  as  to  enable  her  to  discern  the  limits  of 
the  walk,  stepped  off  into  a  ditch  and  was  injured.     Held,  that 
she   could  not  recover:   McLaury  v.   McGregor,  54  Iowa,  7l7, 
Plaintiff  desiring  to  crc="  a  street  in  a  city,  and  seeing  a  car 
■coming,  and  behind  it  a  cart  whicli  was  going  faster  than  the 
car,  made  his  "calculation"  that  he  could  cross  in  front  of  the 
car  ''before   the  cart  could   get  up."     He  accordingly  made 
the  attempt  to  crosf:,  and  passed  in  front  of  the  car,  but  came 
in  contact  with  the  cart  and  was  injured.     Held,  that  plaintiff 
was  guilty  of  contributory  negligence:  Bellon  v.  Baxter,  54  N.  Y. 
245;  13  Am.  Rep.  578.     Plai-Hiff  while  riding  in  a  buggy  in 
one  direction,  and  looking  and  talking  to  persons  in  the  other  I 
direction,  drove  into  a  child's  svving  suspended  between  the 
sidewalk  and  the  traveled  portion  of  the  street,  and  was  thromi 
out  and  injured.     Held,  that  he  was  guilty  of  contributory  neg| 
ligencc:   Tuffree  v.  State  Center,  57  Iowa,  538.     A  woman  diaf 
onally  crossing  a  street  in  full  daylight,  with  her  back  partially 
turned  towards  an  approaching  wagon,  and  wearing  a  sun-]joi> 
net.     Held,  not  guilty  of  contributory  negligence:  Shea  v.  Rccm. 
36  La.  Ann.  966. 

§  1170.  What  is  and  What  is  not  Proper  Use  of  Highl 
way  by  Traveler. — Travelers  are  not  bound  to  kcepinf 
motion  every  instant  they  are  on  the  road.  They  have  n 
right  to  stop  temporarily,  for  business  or  pleasure,  pro] 
vided  they  do  not  unreasonably  interfere  with  tlic  rigl) 
of  others  who  wish  to  use  the  road.^  It  is  not  negligence  fori 
a  pedestrian  to  use  the  carriage-path  of  the  highway,"  espe- 
cially if  the  sidewalk  be  in  bad  condition;  but  ho  u  bouiii 
to  use  more  care  under  these  circumstances,  particuliU'l}| 

'  2  Thompson  ou  Negligence;  1200;  ^  Coombs  v.  Purriugtoii,  4-'  Me.  IwJj 
Hussuy  V.  Kyan,  54  ^Id.  42C;  54  Am.  Raymond  v.  Lowell,  0  t'udh.  MU; ; 
liep.  772.  Am.  Dec.  57. 


347. 
■  Jill) 

X.  s,, 
'^  Kai 

'  m4 

1  Am. 

''Ntin 
Cli  Am. 

Am,  J^.[ 
"lily,  ;i!ii 

te'lijitiu, 

oriiii'j 

CUriiis'iy, 

sulewiilk 


2051 


ilNJURIES   ON   HIGHWAYS. 


§1170 


if  he  walks  in  the  road  at  night.^  But  a  person  will  not 
be  permitted  to  recover  damages  for  an  injury  received 
from  a  defect  in  the  highway  while  using  it  for  a  purpose 
prohibited  by  law,^  nor  for  other  uses  than  those  which 
pertain  to  public  travel,  though  not  prohibited;  as  leaning 
or  sitting  upon  railings  erected  as  barriers.^  A  traveler 
does  not  forfeit  his  rights  by  stopping  momeniarily  to  pick 
berries  by  the  wayside/  or  to  fill  up  a  small  hole  in  the 
road  which  might  otherwise  become  a  means  of  injury  to 
other  travelers/  or  for  no  other  purpose  than  to  gratify  his 
curiosity;  as,  to  watch  the  progress  of  a  horse-trade;"  or 
to  watch  workmen  punching  a  hole  in  a  gas-main,  from 
which  operation  the  traveler  receives  an  injury  to  his  eye 
from  a  particle  of  the  iron  chipped  of;'  or  to  sit  down  on 
a  step  to  rest.^  Children  stopping  on  the  street  to  watch 
others  at  play  do  not  cease  to  be  "travelero.'"'  A  child, 
however,  using  a  highway  as  a  play-ground,  and  not  for 
travel,  cannot  recover  for  an  injury" received  during  such 
use,  although  the  injury  resulted  from  a  defect  in  the 
road.^"  But  it  has  been  held  that  the  use  of  a  sidewalk  by 
a  child  to  roll  its  hoop  upon  is  not  an  improper  use."     A 


1  ]?o^s  V.  Litton,  5  Car.  &  P.  407. 

■^  2  'riioinpson  on  Negligence,  1200. 

^-Thompson  ou  Negligence,  TiOO. 

*  IJiition  V.  Cummington,  107  Mass. 
347. 

''  15al)snn  v.  Rockport,  101  Mass.  93. 

« Bigclow  V.  Reed,  51  Me.  325. 

'  Cleveland  v.  Spier,  1(3  Com.  B., 
N.  S.,  -MX 

^  Kiipl'js  V.  Orth,  Gl  Wis.  531. 

"  IMis.s  ('.  Inhabitants,  145  Mass.  91; 
1  Am.  St.  Rep.  441. 

''  Stiiiscm  V.  Gardiner,  42  Me.  248; 
CliAui,  Dec.  281. 

"  Krcfe  V.  Chicago,  114  111.  222;  55 
Am,  Ul[).  G()0,  the  court  saying:  "A 
siilcu  ilk  i.s  for  the  passage  of  persons 
only,  iiud  wo  have  not  had  in  con- 
toaiiliitioa  any  case  of  it  otlierwise. 
Wlu'ilifi-  it  be  pas.sed  over  for  business 
or  iiir  pliasure,  or  merely  to  gratify  idle 
curiiis'iy,  we  think  the  use  is  lawful. 
A  dull  may  lawfully  bo  upon  the 
sidewalk  for  pleasure  only,  that  is  to 


say,  for  jilay,  and  the  city  owes  the 
same  duty  to  have  the  sidewalk  in  a 
reasona1)ly  safe  state  of  rei)uii-  in  re- 
spect of  it  that  it  does  in  respect  of 
those  who  are  on  the  sidewalk  pas.sing 
to  or  returning  from  their  places  of 
business  or  abode.  It  may  bo  true 
that  the  child  will  be  Iowh  careful  in 
its  mode  of  using  the  sidewallc  while 
playing  than  the  business  man  will  be 
while  traveling  to  or  from  his  place  of 
business  or  abode;  but  this  l)ol(iiig.s  to 
the  domain  of  fact,  and  not  to  that  of 
law.  It  may  l)o  so  in  most  ca.sc.s;  it  is 
not  inevitably  so  in  all  cases.  It  is  for 
the  jury,  not  tlie  court,  to  say  what, 
in  a  given  case,  was  the  conduct  of  the 
parties."  And  the  court  dissent  from 
the  language  of  an  earlier  ca.so,  where 
it  was  said:  "  For  it  is  to  be  borne  in 
mind  that  it  is  not  the  duty  <>i'  the  city 
of  Chicago  to  make  its  .strcots  a  safe 
play-ground  fortliildren.  That  is  not 
the  purpose  for  which  streets  are  de- 


§1171 


NEGLIGENCB. 


2052 


horse  which  has  escaped  and  is  running  loose  upon  tlie 
highway  is  not  using  it  legitimately,  and  no  action,  there- 
foro,  can  be  maintained  by  the  owner  thereof  for  an  injury 
received  by  it  from  a  defect  in  the  highway.^  Leaving  a 
buggy  standing  at  an  angle  to  the  beaten  track,  and  so 
near  that  by  backing  one  foot  it  would  be  in  the  way  of 
passing  vehicles,  is  negligence.^  But  to  leave  a  horse 
fastened  only  by  a  strap  and  weig^*  while  the  wagon  is 
backed  up  to  the  sidewalk  to  be  loi  ued,  although  the  team 
thereby  extends  half  across  the  highway  and  is  liable  to 
be  liit  by  a  runaway,  is  not  negligence.^ 

Illustrations.  —  The  plaintiff,  a  boy  eight  years  old,  on  his 
return  from  carrying  dinner  to  his  father,  crossed  the  way  to 
look  at  some  toys  in  a  window  over  a  grating  in  the  sidewalk 
and,  as  he  turned  away,  his  foot  slipped  into  the  grating, 
causing  injuries.  Held,  that  he  was  not,  in  law,  impropi  rly 
using  the  highway:  Ihint  v.  Salem,  121  Mass.  294.  A  child 
seven  years  of  age,  while  walking  in  the  evening  with  his  father 
on  a  plank  footway  upon  a  bridge  which  the  defendant  city  was 
bound  to  keep  in  repair,  stepped  aside  to  clasp  in  sport  a  post 
forming  part  of  the  bridge,  and  fell  through  a  hole  in  the  plank- 
ing, eleven  inches  square,  near  the  post,  not  known  to  either  the 
boy  or  his  father,  and  was  drowned.  The  father  knew  of  the 
boy's  intention  to  clasp  the  post,  and  did  not  forbid  his  doing  so, 
Held,  not  contributory  negligence  per  se:  GuUine  v.  Lmvcll,  144 
Mass.  491;  59  Am.  Rep.  102. 

1171.   Rate  of  Speed— Maimer  of  Driving. — Wluther 


a  pedestriai\   is  negligent  in 
night  is  a  question  in   the  p 
It  is  not  'per  se  negligence  to 
street;^  nor   for  a  fireman  to 
a  fire  at  night.*^     It  lias  been 

signe<l":  Chicago  r.  Starr,  42  III  177. 
A  uu-l  fourteen  years  old,  while  skip- 
pint;  "ope  upon  a  sidewalk  in  tlu-  d;iy- 
tiniii.  fell  into  an  open  area  and  was 
iuiured.  Held,  that  the  girl  had  i 
rigiit  thus  CO  use  the  sidewalk,  and 
the  owner  of  the  -ritate  wa>  liahle  for 
hur  injurv:  McUuire  r  Speiice,  91 
S.  Y.  '.m.  42  Am.  Rep.  tiOl,  note. 
^  Richardb  c.  Eatield,  13  Gray,  344. 


going  at  too  great  speed  at 
articular  case  for  the  jury.^ 
drive  rapidly  through  ;  city 
run  through  the  str.  ts  lo 
held  not  contributory  nedi- 

*-  c 

'^  Joslin  ?'.  Le  Baron,  44  Mich.  160; 
41  Mich.  31  :i. 

^(Ireenwood  v.  Callahan.  Ill  Mass. 
298. 

*  Elgin  ('.  Renwick.  8G  111.  4!VS. 

^  Carter  v.  Chambeis,  7!^  Ala.  223; 
Rcvuohk  V.  Haiirahau   100  .\[  iss.  m-, 

'•"Oakland  R.  R.  Ca  r.  Fi.!  lini;,  48 
Pa.  St  320;  Palmer  v.  Porta  moiitli, 
43  N.  H.  2lw. 


2053 


INJURIES   ON   H1QH^VAYS. 


§U72 


gence  that  the  plaintiff  drove  over  a  bridge  on  a  slow  trot 
of  about  four  and  one  half  miles  an  hour,  when  it  was  so 
dark  that  he  could  not  see  two  feet  ahead;^  or  that  the 
plaintiff  rode  a  safe  horse,  on  a  dark  night,  bareback  and 
without  martingales,  at  a  speed  of  five  or  six  miles  per 
hour,  over  a  familiar  road;''  nor  that  a  skillful  driver  drove 
a  safe  horse,  with  a  tight  rein,  at  night,  at  his  usual  speed 
of  tea  miles  an  hour,  over  a  wide  and  level  road,  with 
which  he  was  familiar,  and  over  which  he  had  passed  in 
safety  an  hour  previously  without  perceiving  any  obstruc- 
tion;^ nor  hallooing  on  the  highway  to  a  driver  that  a 
team  wants  to  pass  him,  although  the  sound  frigli+  ,ns  the 
driver's  horse  and  brings  about  a  collision;*  nor  is  it 
contributory  negligence  to  allow  a  woman  to  drive,^  or  a 
boy  of  twelve.® 

§  1172.  At  Night. — What  degree  of  care  is  essential 
on  the  part  of  a  person  walking  or  ri'ding  upon  the  high- 
way in  the  night-time  is  a  question  for  the  jury  in  most 
cases,  to  be  judged  of  by  a  consideration  of  the  particular 
circumstances.''  Naturally,  greater  care  and  watchfulness 
are  required  of  a  traveler  at  night  than  by  day;"^  but  the 
traveler  has  the  same  right  to  assume  that  there  is  no  de- 
fect or  impediment  in  the  street,  not  protected  either  by 
a  light  or  a  railing.®  It  has  been  held  not  negligence  per 
ac  to  walk  on  a  sidewalk  or  over  a  bridge  on  a  dark  night 
without  a  light;  *°  or  to  drive  on  the  road  on  a  dark  night, 
allowing  the  horse  to  take  his  own  course." 

'Bly  r.   Haverhill,  110   Mass.  520.  R.  R.  Co.,   34  Wis.  435;   Stevens  v. 

« Stevens  f.  Boxford,  10   Allen,   25.  Boxford,  10  Allen,  25;  87  Am.  Dee.lilG. 

^  Rei'l  i\  Deerfield,  8  Allen,  522.  "  Stier  v.  Oskaloosa,  41  Iowa,  35.3. 

*  Pij,'ott  V.  Lilly,  55  Mich.  150.  •  Cases  in  first  note  in  this  section, 

*C'oljl)v'.  Standish,  14  Me.  198;  Big-  and  Bateman  v.   Ruth,   3  Daly,  378; 

elow  r.  Rutland,  4  Cash.  247;  Blood  Reed  v.  Deerfield,  8  Allen,  522. 

V.  Tyufishoroush,  103  Mass.  509;  Bah-  i^  Maloy  v.  li.  R.  Co.,  58  Barb.  1S2; 

soac.  RdcUport,  101  Mass.  93.  Swift  v.  Newbury,  3G  Vt.  .355;  Osago 

"Bi'oiisdu   V.   Southbury,  37   Conn.  City  v.  Brown,  27  Kan.  74;  Altooua 

199.  V.  Lotz,  114  Pa.  St.  238;  GO  Am.  Rep. 

'  2  Tlio!iii)son  on  Negligence,  1198;  34G;  Glidden  ?>.  Reading,  38  Vt.  52; 

Stier   i:    Oskaloosa,    41    Iowa,    353;  88  Am.  Dec.  639. 

Duniiit  '•    Palmer,   29  N.  J.   L.  544;  "  Rector  v.  Pierce.  ..  Thomp,  &  C. 

\iilet.  tUiss,  50  Barb.  358;  Barton  w.  415;   Wright  v.   Saunders,   58  Barb. 

Spriaglidd,  110  Mass.  131;  Perkins  w.  214;  3  Keyea,  323. 


§1173 


NEOLiaENCE. 


2054 


Illustrations.  — Plaintiff  collided  mth  a  wagon  left  standing 
by  tho  defendant  in  a  highway.  Plaintiff  was  accustomf.-d  to 
drive  horses,  and  the  accident  happened  while  ho  was  driving 
a  gentle  horse,  on  a  darlc  night,  on  a  slow  trot,  looking  out  on 
one  side  of  the  horse  for  a  blanket  which  ho  had  lost  sliortly 
before  from  his  wagon,  while  his  companion  was  looking  for  tho 
blanket  on  the  other  side,  and  neither  of  them  saw  the  detcnd- 
ant's  wagon  before  the  collision,  though  the  plaintiff  had  scon 
tho  obstruction  there  on  the  day  of  the  accident.  lie  had  a 
right  to  suppose  that  tho  unlawful  obstruction  would  have  lucn 
removed  before  nightfall.  Held,  not  guilty  of  contributory  neg- 
ligenco:  Fox  v.  SacJcett,  10  Allen,  535 j  87  Am.  Dec.  G82. 

§  1173.  Skittish  or  Scared  Horse — Defective  Vehicle 
or  Harness.  —  It  is  held  by  some  courts  that  no  recovery 
can  bo  had  whore  tho  injury  is  the  joint  result  of  a  defect 
in  the  highway  and  a  fright  on  the  part  of  the  horse, 
causing  the  driver  to  lose  control  of  him,^  except  wliere 
tlie  fright  of  tho  horse  is  tho  result  of  the  defect  in  the 
highway.'^  But  in  other  courts  the  traveler  is  allowed  to 
recover  for  the  result  of  a  defect  in  the  highway,  and  an 
accidental  fright  of  tho  horse.'  Tho  plaintiff  may  be 
guilty  of  contributory  negligence  in  riding  in  an  ob- 
viously defective  wagon,'*  or  with  imperfect  harness,  or  a 
horse  badly  shod,  or  a  wagon  not  supplied  with  a  brake.' 
In  some  states  it  is  held  that  if  a  defect  in  the  plaint iif's 
carriage,  though  it  were  unknown  to  him,  contribute 
jointly  with  a  defect  in  the  highway  to  produce  an  injury 
to  the  plaintiff,  there  can  be  no  recovery,  on  the  princi- 
ple that  "  the  plaintiff  must  show  that  tho  accident  oc- 
curred wholly  by  the  defect  of  the  road,  and  witiiout  any 
fault  on  his  part."®     In  others  the  rule  is,  that  if  the  de- 

>  Davis    V.    Dudley,   4   Allen,    558;  Co.,  40  Coiiii.  2.'$8;  Brookvillo  Turn- 

Miirdock  V.   Warwick,   4  Gray,    178;  piko   Co.    ?>.    Puinphrey,    5S)   I  ml.  7S; 

Titus   r.  Northliridge,  97   Mass.  258;  Winship   v.    Eufiekl,    42  N.    II.    Vfr, 

9M   Am.    Doc.    91;    Fogg   v.    Nahaiit,  Hey  v.  Philadelphia,  81  Ta.  St.  41:  •-'2 

98  Masa.  578;  Moulton  v.  iSanford,  51  Am.  Rep.  733;  Huutv.  l'owu;ill,  U  Vt. 

Mu.  127;  Perkins  v.  Fayette,  08  Me.  411. 

152;  Jackson  n.  Belleview,  30  Wis  250.  *  Hammond  v.  Mukwa,  40  Wis.  To. 

-  Kelloy   V.  Foud   du  Lac,  31  Wis.  *  Allen    v.    Hancock,    l(i    Vt.   i.iO. 

179;   Montgomery  v.   Scott,   34  Wis,  Sec  Lindsey  v.  Danville,  45  Vt.  7-. 

338.  «  2  Thompson  on  Negligcnci",  lliOS; 

^  Lower  Macungie    v.    Merkhoffer,  Farrar  v.  Greene,  32  Mo.  574;  Moore 

71  Pa.  St.  27G;  Baldwin  v.  Turnpike  v.  Abbott,  32  Me.  4G. 


2055 


r.K 


INJURIES   ON   HIGHWAYS 


§  1173 


feci  is  unknown  to  the  plaintifT,  in  the  exerciso  of  reason- 
able' cure  in  the  selection  of  his  vehicle  and  harness,  it 
\nll  not  avail  as  a  defense,  where  the  injury  results  from 
this  defect  and  the  condition  of  the  highway  jointly.* 

Iliatstrattons,  —  The  plaintiff  was  injured  by  falling  into 
an  open  cellar,  the  wall  of  which  extended  into  the  street.  The 
plaintiff,  driving  one  horse  in  a  chaise,  stopped  near  the  cellar, 
ami  turned  the  animal  to  one  side  in  order  to  admit  some  one 
into  the  carriage.  He  then  attempted  to  turn  the  horse  sufli- 
cienlly  to  bring  him  into  the  road;  but  the  horse  came  back 
too  f;ir,  and  began  to  back.  lie  then  slapped  the  animal  with 
tho  reins  to  start  him  forward,  and  the  horse  stopped;  but  the 
rear  wheels  were  then  passing  over  the  cellar-wall,  and  the 
plaintiff,  in  attempting  to  jump  out,  was  caught  by  the  fender, 
aiul,  together  with  horse  and  vehicle,  fell  into  tho  cellar.  Held, 
insufUcient  to  establish  the  defense  of  a  want  of  the  exercise 
of  ordinary  care  on  his  part:  Nichols  v.  Bmnstviclc,  3  Cliff.  81. 
A  horse  was  frightened  by  a  defect  in  the  highway,  and  tho 
driver,  to  stop  his  running,  turned  him  towards  a  bank,  where 
tho  horse  struck  a  post  outside  the  traveled  part  of  the  high- 
way. Held,  that  the  plaintiff  was  not  entitled  to  recover,  al- 
tliough  he  had  used  due  and  reasonable  care  in  the  selection 
and  management  of  his  horse:  Brooks  v.  ArAon,  117  Mass.  204. 
Plaintiff's  horses,  while  he  was  driving,  took  fright  from  an  at- 
tack by  defendant's  dog,  and  plaintiff  brought  suit  for  injuries 
sustained  from  falling  from  the  wagon.  Held,  that  neither  the 
fact  that  ho  rose  to  his  feet  when  the  horses  started,  nor  that 
the  seat  was  not  fastened  to  the  wagon,  affected  his  right  of  re- 
covery: Merade  v.  Down,  G4  Wis.  323.  Defendant's  cars  had 
run  oil  the  track  at  a  highway  crossing.  The  plaintiff  under- 
taking to  drive  a  horse  over  the  crossing,  the  horse  showed  fright 
at  the  upturned  cars,  but  the  plaintiff  persisted,  the  horse  ran, 
and  the  ))laintiff  was  injured.  There  was  another  road  near, 
whicli  the  plaintiff  might  have  taken.  Held,  contributory  ncg- 
ligenee:  PlfL^burg  etc.  R.  R.  Co.  v.  Taylor,  104  Pa.  St.  30G;  49 
Xm.  Uep.  5cS0.  A  horse  is  frightened  at  the  noise  of  steam  es- 
caping from  an  engine,  and  the  owner  of  the  horse,  instead  of 
leading  the  horse  away,  leads  him  toward  the  engine,  and  he 
becouies  unmanageable,  and  rears  and  falls  backward,  and 
breaks  his  neck.  Held,  that  the  owner  is  guilty  of  contributory 
ueghgence:  Louisville  and  Nashville  R.  R.  Co.  v.  Schmidt,  81 
lud.  264. 


'  rainier  v.  Audover,  2  Ciish.  600; 
Tuttlu  ('.  Farinington,  58  N.  H.  6li; 
Dreher  v.  Fitchburg,  22  Wis.  675; 
Flctchur  y.  liarnct,  43  Vt.  192;  Clark 


V.  Barrington,  41  N.  H.  44;  Ilodge  v. 
Bennington,  43  Vt.  450;  Tucker  v. 
Henuiker,  41  N.  11.  317. 


§1174 


NEGUGENCE. 


205G 


§  1174.  V/'hen  Plaintiff  has  Knowledge  of  Defect.  . 
Knowledf^o  of  a  <lcfoct  in  a  lii^hway  is  not  conchisivo 
evidoneo  of  nof:;ligcnco  in  attoinptiiig  to  pass  it.'  A  per- 
son is  not  oblij^cd  to  keep  away  from  a  street  bocaiisc  lio 
knows  boforoliand  or  sees  tliat  there  are  dcfcols  in  it,- 
Ile  may  attempt  to  pass  over  it,  provided  ho  uses  due  care 
under  tlio  circumstances.*  But  ho  is  guilty  of  .on- 
tributory  negligence  if  knowing  of  and  seeing  the  (IdVct 
he  recklessly  rushes  into  it,  and  ho  must  take  the  conso. 
quences.'*  If  one  is  possessed  of  ])0sitive  knowledge  (Imt 
the  defect  is  dangerous,  and,  in  addition  to  this  ciicuin- 
stance,  that  there  is  another  and  safer  way,  no  rocovcry 
can  bo  had  for  an  injury  to  person  or  properly  from  an 
attempt  to  pursue  the  dangerous  course."     But  it  is  not 


»  Smitli  r.  St.  Joseph,  45  Mo.  440; 
Koiiwortliy  >\  Iroutoii,  41  Wis.  047; 
Whitaker  r.  Hoylston,  97  Mass.  273; 
Lyman  i\  Amherst,  107  Mass.  Xii); 
Reed  ?'.  NorthlieM,  U  Pick.  94;  23 
Am.  Dec.  (UiH;  Woiul  ?>.  Ballston  Sjja, 
70  N.  Y.  .321);  Wilson  ;-.  Roa.l  Co.,  9;i 
lud.  287;  .Smitli  r.  Clark,  3  Laus.  208; 
Ross  r.  Davenport,  (Jti  Iowa,  ii48;  Fiil- 
liam  )'.  Muscatine,  70Iowa,  430;  Henry 
Co.  Tp.  Co.  r.  .Tackson,  80  Inil.  Ill; 
44  Am.  Rep.  274;  Bassett  v.  Fish,  75 
N.  Y.  303;  Mayor  r.  Holmes,  39  Mtl. 
241. 

''  Rico  V.  Dc9  ;Moines,  40  Iowa,  G38; 
Reed  V.  Northtield,  13  Pick.  94;  23 
Am.  Dec.  002.  ^V■dking  on  a  street 
known  to  bo  partly  obstructed  by  fallen 
telephone-wires  does  not  necessarily 
show  contributory  negligence:  Nichols 
i\  Minneapolis,  33  Minn.  430;  53  Am. 
Rep.  50. 

»  Kelley  v.  Fond  du  Lac,  31  Wig. 
170;  Smith  i:  Lf>well,  0  Allen,  39;  Gil- 
man  v.  DeerHcld,  15(Tray,  577;  Whit- 
ford  ?'.  Southbridge,  110  Ma.sa.  504; 
Hincklevr.  Barnstalde,  109  Mass.  120; 
Clayards  v.  Dethick,  12  Q.  B.  430; 
Baltimore  v.  Holmes,  30  Md.  243; 
Crumpton  v.  Solon,  11  Me.  335;  Smith 
r.  vSmitli,  2  Pick.  021;  Thompson  v. 
Bridgewater,  7  Pick.  188;  Rindge  v. 
Coleraino,  11  Cray,  157;  Jacobs  v.  Ban- 
gor, 10 Me.  1S7;  33  Am.  Dec.  052;  Gar- 
niou  V.  Bangor,  38  Me.  443;  Noyea  v. 


Morristown,  I  Vt.  353;  Folsom  r.  Un. 
derhill,  30  Vt.  580;  Korb  r.  K,l-e. 
water,  14  Hun,  544;  Nicks  r.  Mar- 
shall, 24  Wis.  1.30;  Karlevill,.  /-.  Car- 
ter, 2Bradw.  34;  Craig  r.  Sedalia.  (IS 
Mi>.  417;  Mooro  v.  Slirevciiort,  li  La. 
Ann.  (i45;  Tiionias  v.  WcsLcni  I'liidn 
Tel.  Co.,  100  Mass.  150.  Wlu'ii  onu 
drives  from  the  country  into  a  city,  it 
is  not  contributory  neglit^iMU'e  fur  liim 
to  drive  through  a  pulilic;  str''ct,  ain! 
tbrougli  what  ap])i!ar.s  to  bo  a  nunc 
pool  of  water  standing  there,  tlirrr  Iju- 
iiig,  in  fact,  a  concealed  hole  t\\ n  ami 
one  half  feet  deep  iiiider  tlie  iioul: 
IledgcH  V.  Kansas,  18  Mo.  Ap]).  (i'_*. 

■•  Butterfield  r.  Forrester.  1 1  East, 
GO;  (iriflin  ?•.  New  York.  9  N.  Y.  4."ili: 
01  Am.  Dec.  700;  Coiiielius  r.  Apjle- 
ton,  22  Wis.  035;  Goldstein  r.  11.  K. 
Co..  4(5  Wis.  404;  Town  of  Gcwpurtc 
Evans,  112  lud.  133;  2  Am.  St.  Kqi. 
104. 

•'  Centralia  v.  Krouse,  til-  111.  ID; 
Lovenguth  ?'.  Bloomingtoii,  71  111.  'iiS; 
Wilson  ('.  Charlestown,  8  Allen,  IDT; 
85  Am.  Dec.  003;  Diirkin  r.  Tiny,  til 
Barb.  437;  .SchaeHer  r.  Siiinhi-kv,  !« 
Ohio  St.  240;  Wood  v.  An  lef.  1 1  ilnii. 
513;  Forks  Township  r.  Kiiii',  ol  l':i. 
St.  230;  Parkhillc.  Bri^'bton.'lil  hm-a, 
103;  McGinty  v.  Keokuk,  Citl  lnwa, 
725;  Hartman  r.  Muscatine,  70  hnva, 
511.  Contra,  Whitford  v.  Southbriilgc, 
119  Mass.  504. 


S057 


INJURIES    ON    niGHWAYS. 


§1174 


necessarily  negligent  to  try  to  drive  on  a  diifoctivo  road, 
although  the  driver  knows  the  defect,  if  lu;  helievcs  it 
rciisonuhly  safe,  and  there  is  no  other  safe  road.'  Ono 
may  use  an  unsafe  sidewalk,  knowing  it  io  bo  unsafe, 
without  Jiocossarily  being  guilty  of  contributory  negli- 
gence.'' 

A  person  who  voluntarily  attempts  to  pass  over  a  side- 
walk of  a  city  which  he  knows  to  bo  dangerous,  by  reason 
of  ico  upon  it  or  other  defect  in  it,  when  ho  might  easily 
avoid  it,  is  guilty  of  contributory  negligence.'"'  The 
plaintiff's  general  acquaintance  with  the  obstruction  or 
defect  in  the  highway  will  not  prevent  a  recovery  for 
injuiios  received  on  this  account,  if  under  the  circum- 
stances he  might  still,  in  the  exercise  of  ordinary  pru- 
dence, be  unaware  of  his  proximity  to  it;'*  as  where  the 
feiiialc  plaintiff  knew  of  the  defect,  but,  being  frightened 
at  the  attempt  of  a  strange  man  to  seize  her,  ran  over  tho 
sidewalk  in  the  dark,  giving  no  thought  to  the  sidewalk 
or  her  manner  of  going  over  it;*  and  whore  a  woman, 
under  very  similar  circumstances,  ran  to  her  home  on 
hearing  that  her  children  were  in  danger."  But  it  has 
been  hold  that  to  excuse  the  failure  to  observe  a  defect  of 
wliieli  the  plaintiff  had  knowledge,  his  attention  must  bo 
distiactcd  by  some  present  necessity,  and  it  will  not  bo 
a  sulllcient  justification  that  at  the  time  of  tho  injury  the 
plaintiir  was  engaged  in  observing  a  passing  buggy,  to 
satisfy  his  curiosity  in  regard  to  the  stylo  of  harness  used 
upon  the  team.''  If  the  liighway  is  obstructed  by  snow, 
and  the  traveler  knows  it  to  be  dangerous  or  impassable, 


'  Tiwu  of  Albion  v.  Hetrick,  90  Ind. 
545;  4ii  Am.  Kop.  230. 

■'UuUnuk  V.  New  York,  99  N.  Y. 
054:  K  ii|ii)ria  v.  Schmidlini:;,  33  Kan. 
485;  (lilliort  v.  Boston,  139  Mass.  313; 
Eviuis  r.  Utica,  G9  N.  Y.  llki;  25  Am. 

''  SilKititlur  r.  Sandusky,  33  Ohio  St. 
24G;  lUdoniington  v.  Read,  2  111.  App. 
54'J;  Macoml)  v.  Sniithers,  G  111.  App. 
i'lO;  ludiauapolia  v.  Cook,  99  lud.  10; 


but  see  Gilbert  v.  Boston,  139  Mass. 
313;  Evans  v.  Utica,  (i9  N.  V.  I()(5; 
25  Am.  Rep.  IG");  Dewiio  v.  liailcy, 
131  Mass.  1G9;  41  Am.  K.p.  219. 

■*  2  Thompson  on  Nof^li^^eiu'o,  1204; 
Blood?'.  'ryugsborouj;ii,  103  Mass.  r)09. 

*  Barton  v.   Springliold,   1 10  Mass. 
131. 

"  Wcare   v. 
334. 

'  Kcwauoe  v.  Dtpew,  80  111.  119. 


Fitchburg,    110   Mass. 


*. 


6^. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


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tiS. 


2.0 


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Photographic 

Sciences 

Corporation 


33  WEST  MAIN  STREET 

WEBSTER,  N.Y.  145*0 

(716)  S72-4503 


> 


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4^  ^ 


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% 


§1174 


NEGLIGENCE. 


2058 


but  persists  in  going  on,  he  cannot  recover  dama^os  of 
the  town;  but  if  he  merely  knows  that  it  is  obstructed, 
but  not  so  much  as  to  indicate  to  hira  that  he  cannot  jrot 
through  with  safety,  and  he  meets  with  an  injury  while 
proceeding  with  due  care,  he  can  recover,  in  case  the  town 
was  negligent  in  suffering  the  obstruction  to  exist.'    It 
was  hold  a  question  for  the  jury  whether  the  plaintiff  was 
negligent  in  attempting  to  drive  his  horse  and  sled  loaded 
with  lumber  across  the  tracks  of  a  street-railroad  com- 
pany upon  the  sides  of  which  snow  had  been  heaped  up 
so  that  the  track  lay  in  a  trough  twelve  or  fourteen  iuchos 
deep.^     A  ui   so  where  the  plaintiff  endeavored  to  j)as3 
along  the  tc  >  of  fin  embankment,  by  the  side  of  the  iiij^fh- 
way,  which  the  defendant  neglected  to  keep  protected  by 
a  fence  or  r;:':'.ng,  and  while  so  doing  was  forced  over  tlie 
edge  by  the  backing  of  a  cart,  which  she  saw  there  before 
she    came    to    the    place    of    injury.*     One   who   drives 
against  an  obstruction  which  he  might  readily  have  seen 
is  negligent;*  and  one  who  crosses  a  bridge  with  an  un- 
usually heavy  load  does  so  at  his  own   risk.*^     The  fact 
that  a  husband  knew  of  a  defect  in  season  to  have  warned 
his  wife  is  no  defense  to  an  action  by  the  husband  and 
wife  for  an  injury  to  the  latter.®     Knowledge  of  a  defect 
cannot  be  inferred  from  the  fact  that  it  customarily  ex- 
isted.'^    A  person  with  poor  sight  must  use  greater  care 
in  the  streets  to  avoid  defects  and  dangers  than  tliose 
with  good  sight;*  so  of  one  far  advanced  in  years,  and 
feeble.^ 

Tr. LUSTRATIONS.  —  Plaintiff  knew  that  there  wore  several  water- 
bars  on  a  bill  about  a  quarter  of  a  mile  long  over  wdiieh  hor 
horse  eould  not  trot  in  safety.     Thinking  that  she  had  cru.^a'd 

'  ll.irtdii  r.  Ipswich,  12  Cush.  4SS.  «  Street  v.  Holyoke,  105  Mass.  Si!;  7 

•^  MiliLiicv  ('.  R.  U.  Co.,  104  Ma.ss.  Am.  Hup.  500. 

73.  '  Hinckley  v.  Barnstable,  lO'J  Mass. 

^  Snow  )'.  Provincetowu,  120  Ma.ss.  120. 

580.  »  Winn    v.   Lowell,    1    Allen,    177; 

*  Viiliii  r.  Ottninwa,  GO  Iowa,  429.  Peach  ?•.  Utica,  10  Hun,  4<7:  Daven- 

•'  Fulto?!  Iron  Works  v.  Kiinball,  52  port  r.  Rncknian,  37  N.  Y.  5(i8. 

Mich.  liii.  »  Ceatralia  v.  Krouse,  04  111.  I'J. 


2059 


INJURIES   ON   HIGHWAYS. 


§11-1 


them  all,  she  allowT3d  her  horse  to  trot,  having  a  roin  in  each  of 
her  hands,  the  wheels  in  the  regular  ruts,  and  the  horse  under 
control.     While  so  driving,  the  wagon  came  upon  a  bar  which 
she   failed   to  see,  in  consequence  of  which  the  wagon   was 
overturned,  and  she  was  injured.     Held,  that  there  was  evidence 
for  the  jury  that  she  was  in  the  exercise  of  due  care:  JUood  v. 
Tyuij^horoufjh,  103  Mass.  509.     A  traveler  driving  on  the  high- 
wiiy,  on  con.)ing  to  a  bridge,  stopped  and  ordered  his  servant  to 
exaiiiino  it,  it  being  unsafe;  he  ordered  him  to  examine  tho 
deptli  of  the  stream,  which  was  reported  as  fordable.     Held,  or- 
(liiKiry  care  on  the  p*rt  of  the  traveler:  Branan  v.  Mny,  17  Ga. 
lo(j.    One  who  knew  of  a  hole  in  the  sidewalk,  and  was  watch- 
ing to  avoid  it,  was  prevented  from  so  doing  by  a  blinding 
snow-storm,  and  fell  into  the  hole  and  was  injured.     The  side- 
walks on  any  other  street  leading  in  the  direction  of  his  home 
were  equally  unsafe.     Held,  not  guilty  of  negligence:  Aurora  v. 
/)((/«,  90  111.  46.     One  unnecessarily  undertakes  to  drive  with 
a  liorse  and  wagon  over  a  highway  overflowed  by  a  stream  of 
water  thirty  or  forty  yards  wide  in  some  places,  not  less  than 
three  feet  deep,  with  a  current  moving  at  the  rate  of  live  miles 
an  iioiir,  and  cari-ying  cakes  of  ice  twenty-five  or  thirty  feet  in 
diameter,  and  is  drowned  by  getting  ofT  the  road  into  the  deeper 
channel  of  the  river.     Held,  that  his  negligence  defeats  an  action 
for  damages:  Merrill  v.  North  Yarmouth,  78  Me.  200;  57  Am. 
Rep.  79 1.     Plaintiff  attended  an  evening  entertainment  at  the 
defendant's  public  hall,  and  on  coming  out,  slipped  on  snow  and 
ice  accunmlated  on  the  plank  sidewalk  in  front  of  the  door,  and 
was  injured.     Held,  that  he  was  not  precluded  from  recovery 
by  tiie  fact  that  he  noticed  the  snow  and  ice  on  going  in:  De- 
wiiY  V.  Bailey,  131  Mass.  169;  41  Am.  Rep.  219.     A  started  to 
cross  a  bridge,  which  was  out  of  repair,  on  a  dark,  rainy  night, 
in  ninter-time,  when  very  much  intoxicated.     He  was  warned 
that  the  bridge  was  unsafe,  and  that  there  was  another  bridge 
wliich  he  could  cross,  which  was  safe,  and  within  a  few  feet  of 
thi>  one  from  whicli  he  fell.     FJdd,  guilty  of.contributory  negli- 
genee:   Wood  v.  Village  of  Andes,  11  Ilun,  543.     One  walking 
aloii^;  the  sidewalk  in  the  night-time  stepped  upon  some  boards 
whi(  h  he  supposed   had  been  placed  tliere  to  prevent  people 
from  walking  on  the  other  part  of  the  sidewalk,  which  had  the 
appearance  of  having  been  freshly  tarred,  but  which  were  in 
faet  placed  over  an  excavation,  and  one  of  the  boards  broke, 
fo  that  he  fell  through  and  was  injured.     Held,  not  negligent: 
lIuMimi  V.  Collins,  90  111.  410. 


§U75 


NEGUGENCE. 


20G0 


CHAPTER  LXL 


INJURIES  BY   RAILROADS.-* 


§  1175.  Railroad  tracks  in  streets  —  Negligence  in  care  of. 

§  1176.  Trains  frightening  horses  of  travelers. 

§  1177.  Obstruction  of  streets  by  railroad  trains. 

§  1178.  Strout-cars  —  Injuries  to  travelers. 

§  1 179.  Contributory  negligence  of  traveler. 

§  1  ISO.  Railroad  crossings  —  Rights  of  public  —  Liability  of  railroad  for  in- 
juries. 

§  1181.  Degree  of  care  required  of  railroad. . 

§  1 182.  Rate  of  speed. 

§  1 183.  Duty  to  give  warning  —  Ringing  bell  or  soanding  whistle. 

§  1184.  EviJeuce  as  to  giving  of  signals. 

§  1 185.  Gates  at  crossings  —  Flag-men. 

§  1186.  Dangerous  crossings  —  Obstructed  view. 

§  1 187.  Running  or  flying  switch  —  Backing  cars. 

§  1188.  Contributory  negligence — In  geueraL 

§  1189.  Duty  to  look  and  listen. 

§  1190.  Other  cases  of  contributory  negligence  at  crossings. 

§  1191.  Persons  under  physical  disabilities. 

§  1192.  Trespassers  on  tracks  —  Duty  and  liability  of  company. 

§  1 193.  Persons  on  track  by  express  permission. 

§  1194.  Persons  on  track  by  license  or  custom. 

§  1175.  Railroad  Tracks  in  Streets  —  Negligence  in 
Care  of.  —  A  railroad  company  which  has  a  right  to  lay  its 
tracks  in  the  public  streets  must  lay  them  properly,  and 
keep  tliem  in  proper  repair;  otherwise  they  will  be  liaMe 
for  any  injuries  caused  by  tliem.^  So  where  the  rail- 
road is  by  agreement  with  the  city  under  the  oblif:;atioii 
of  keeping  a  portion  of  the  street  in  repair,  it  is  resi)oii- 
sible  to  any  one  injured  by  its  neglect  in  this  re:?pi'ct.' 


*  As  to  injuries  to  passengers,  see 
Bailments  —  Carriers. 

•^  Lowrcy  v.  R.  R.  Co.,  4  Abb.  N.  0. 
32;  Mazetti  r.  R.  R.  Co.,  3  E.  D.  Smith, 
98;  Wcrsti'r  v.  R.  R.  Co.,  50  N.  Y. 
203;  Rockwell  v.  R.  R.  Co.,  64  Barb. 
4'M;  Oakland  R.  R.  Co.  v.  Field- 
ing, 48  Pa.  It.  .320;  Fash  v.  R.  R.  Co., 

I  Daly,  148;  Carpenter  v.  R.  R.  Co., 

II  Abb.  Pr.,  N.  S.,  41G;  WooUy  v.  R. 


R.  Co.,  83  N.  y.  121.  And  the  street 
within  the  rails:  Conroy  v.  R.  U.  (.'«., 
52  How.  Pr.  49. 

'Jenkins  r.  Fahey,  II  Hui',  I'l; 
Brooklyn  v.  R.  R.  Co.,  47  N.  ^  17:.; 
7  Am.  Rep.  469;  Troy  ?..R.  11.  ('(..,4:) 
N.  Y.  657;  Oaklan<l  R.  R.  Co.  >:  Fitll- 
ing,  48  Pa.  St.  .320;  Mastersmi  ,•.  R. 
R.  Co.,  84  N.  Y.  427;  38  Am.  Die, 
510. 


20G1 


INJURIES    BY   RAILROADS. 


§1176 


ili'oad  for  iu. 


Thus  a  railroad  has  been  held  guilty  of  negligence  where 
by  the  sinking  of  the  pavement  a  spike  in  the  rail  was 
left  exposed,  with  whicli  the  plaintiff's  carriage  coming  in 
contact  the  plaintiff  was  thrown  out  and  injured;*  in 
leanng  so  wide  a  space  between  the  rail  and  the  planking 
ill  that  part  of  its  cotton-yard  designed  for  hauling,  that 
while  a  teamster  is  using  due  care  his  mule,  in  slipping 
upon  the  planking,  catches  his  foot  therein;"  in  negli- 
gently constructing  a  highway  crossing.'  But  a  street- 
raihvay  company  bound  to  keep  its  track  in  repair  and  on 
a  level  with  the  grade  of  the  street,  and  so  constructed  as 
not  to  impede  carriage  travel,  is  not  responsible  for  an  ac- 
cident caused  by  the  uneveniiessof  the  surface  of  the  street, 
where  it  had  worn  away  below  the  established  grade.* 
And  it  is  not  negligence  per  sc  for  a  railroad  company  not 
to  block  the  joints  of  its  switches.^ 

§  1176.    Trains  Frighteningf   Horses  of  Travelers.  — 

Railroad  companies  running  their  trains  in  a  proper  and 
usual  manner  are  not  responsible  for  damages  caused  by 
the  horses  of  travelers  or  othe:3  taking  fright  at  the 
sound  or  appearance  of  the  passing  train."  So  a  traveler 
on  a  road  running  parallel  with  a  railroad  has  no  cause 
of  action  against  the  railroad  company  for  injuries  caused 
by  his  horse  taking  fright  from  smoke  caused  by  coaling 
up  an  engine  coming  in  the  opposite  direction.^  Where  a 
railroad  is  entitled  by  law  to  run  its  trains  along  a  street, 
it  is  not  liable  for  damages  caused  by  the  horses  of  a 


'Fish  V.  R.  R.  Co.,  1  Daly,  148. 

"  Ctiitnil  11.  11.  ami  Banking  Co.  v. 
Gleason,  G9  Ga.  200. 

'Miiim  ('.  R.  R.  Co.,  55  Vt.  484;  45 
Am.  Hep.  028. 

'  (r.ilveston  City  R.  R.  Co.  v.  No- 
lan, MTcx.  1.39. 

'  Chicai'o  etc.  R.  R.  Co. »».  Lonergan, 

USUI.  41. 

"Fiuor  (..  R.  R.  Co.,  114  Mass. 
350;  I'J  Am.  Rep.  ^M;  Norton  v.  R. 
iU'o.,  ll'.i  Mass.  36t);  Hall  v.  Brown, 
54  N.  U.  495;   Coy  v.  R.  R.  Co.,  23 


Barl).  643;  Culp  v.  R.  R.  Co.,  17  Kan. 
475;  Philadelphia  «tc.  R.  R.Co.r.  Sting- 
er, 78  Pa.  St.  219;  Baltimore  etc.  R.  R. 
Co.  V.  Thomas,  CO  Iml.  107;  Peru  etc. 
R.  R.  Co.  V.  Hasket,  10  Ind.  409;  71 
Am.  Dec.  335;  Oliio  etc.  R.  R.  Co.  v. 
Cole,  41  Ind.  331;  Indianapolis  etc. 
R.  R.  Co.  V.  McBrowu,  40  Iiid.  229; 
Cincinnati  etc.  R.  R.  Co.  r.  Gaines, 
104  Ind.  32(5;  54  Am.  Rep.  331. 

'Lambv.  R.  R.  Co.,  140  Mass.  79; 
54  Am.  Rep.  449. 


§1170 


NEGLIGENCE. 


20G2 


traveler  taking  fright  at  the  necessary  blowing  off  of 
steam  from  one  of  its  locomotives;  but  if  the  steam  were 
blown  off  negligently,  it  would  be  liable.*  Courts  will 
judicially  know  that  the  blowing  of  a  whistle  is  onoof  ijie 
ordinary  signals  used  in  the  running  of  a  railway  tiuin^ 
and  that  in  the  management  of  locomotive-engines  it  is 
at  times  necessary  to  open  the  valves  and  permit  the  es- 
cape  of  steam.''  Whether  the  act  was  proper  or  not  iindir 
the  circumstances  is  generally  a  4uestion  for  the  jury.^ 
The  following  have  been  held  to  amount  to  negli'^^ence 
on  the  part  of  railroad  companies  in  this  respect,  viz,; 
To  discharge  a  sudden  jet  of  steam  upon  a  passing 
tean.,  or  in  the  yard  near  a  highway;*  to  sound  the  stoum- 
whistle  under  a  bridge  while  a  traveler  was  passing  over 

totned  to  its  war-'.ing.      Wlicre  traiiu  | 
are  passing  thr     gh  the  built-up  por. 
tious  of    town,  and  cities,  it  i.s  ni.t  I 
needed    nor    often    used.       In   suJi 
cases  they  move  slowly,  and  tlio  rin.i. 
ing  of  a  bell  suflBcieully  answuis  the 

fmrposea  of  an  alarm,  and  is  notwl 
ikely  to  frighten  horses.     But  win  re 
it  is  necessary  to  warn  crossings  or  I 
bridges  at  a  distance  in  advaiicr  of  the  I 
train,  no  sufficient  substitutu  liaajvtl 
been  found  for  the  whistle.     It  can  lej 
heard  in  any  condition  of  wind  aiui| 
weather.     In  the  abseuse  of  tlie  di- 
covery  of  any  suitable  substitute,  amii 
in  view  of  its  use  upon  all  rtnuls (ipirl 
ated  by  steam,  the  mere  fact  of  the! 
whistling  furni.shes  no  pre.suniiitiuiicij 
ne;;ligence.     Was  the  whistle  u.-icil  ill 
such  a  wanton  manner  as  t<>  iunnutitl 
to  negligence?  Tiie  learned  juilgt'lcttj 
this  question  to  the  jury,  and  in  so  iif 
he  was  right."  J 

»Hill  V.  R.  R.  Co.,  55  Mo.  438;1| 
Am.  Dec.  GOl;  Philadelphia  etc.  K.lJ 
Co.  I'.  Stinger,  78  Pa.  St.  '2VX  Til 
plaintiflf  may  show  tliat  the  sound  J 
the  whistle  frightened  othtir  liuwl 
at  the  same  time  and  place,  and  a!*/ 
show  the  usual  eflfect  of  that  wliisdj 
on  ordinary  horses  at  the  saiu  j  ])h 
Hill  V.  R.  R.  Co.,  65  Me.  438;  'JJ  An 
Dec.  GOl. 

*  Stamm  v.  R.  R.  Co.,  1  Abb.  X. 
438;  Petersburg  etc.  R.  R.  Co, 
Hite,  81  Va.  767. 


'  Hahn  v.  R.  R.  Co.,  51  Cal.  G05; 
Gulp  r.  R.  R.  Co.,  17  Kan.  475;  Borst 
V.  R.  II.  Co.,  4  Hun,  346;  Hill  v.  R. 
R.  Co.,  55  Mo.  438;  92  Am.  Dec.  GOl; 
Manchostor  etc.  R.  R.  Co.  v.  Fullar- 
ton,  14  Coin.  13..  N.  S.,  53;  Pennsylva- 
nia etc.  R.  R.  Co.  V.  Barnett,  50  Pa. 
St.  259;  BiUmau  v.  R.  R.  Co.,  7GInd. 
ICG;  40  Am.  Rep.  230;  Gibbs  v.  R.  R. 
Co.,  2G  Minn.  427;  Stamm  v.  R.  R. 
Co.,  1  Al)b.  N.  C.  438;  Chicago  etc. 
R.  U.  Co.  V.  Dunn,  52  111.  451;  4  Am. 
Rep.  GOl). 

'^  Toledo  etc.  R.  R.  Co.  v.  Har- 
mon, 47  111.  298;  95  Am.  Dec.  489; 
Nashville  etc.  R.  R.  Co.  v.  Starnes, 
9  IIei.sk.  25;  Philadelphia  etc.  R. 
R.  Co.  V.  Stiugcr,  78  Pa.  St.  219,  the 
court  sayiny:  "What  is  proper  care 
cannot  bo  determined  by  any  fixed 
rule  of  law.  It  must  depend  upon 
the  facts  of  the  particular  case.  That 
which  wouM  be  duo  care  in  running  a 
traiu  through  a  sparsely  settled  rural 
district  might  be  negligence,  if  not 
actual  recklessness,  in  approaching  a 
largo  city.  The  steam-whistle  is  one 
of  the  recognized  methods  of  signal- 
ing the  a[)proach  of  a  train.  Its 
universal  use  upon  radroads  is  a  strong 
argument  in  favor  of  its  efljciency.  It 
is  shrill  and  piercing;  can  be  heard  for 
a  great  distance,  and  can  be  mistaken 
for  nothing  else.  Yet  it  has  disad- 
ivantages.  More  than  all  other  sounds, 
it  is  a   terror  to   auiinala    uuaccus- 


20G3 


INJURIES   BY   RAILROADS. 


§  1176 


it;'  suddenly  to  omit  from  an  engine  standing  near  a 
crossing  an  increased  quantity  of  steam,  so  as  to  frigliten 
ji  traveler's  horses  after  the  flag-man  on  duty  has  beckoned 
him  to  cross; '^  to  blow  off  the  mud-cocks  of  an  engine  at 
a  crossing  where  there  h  great  traffic,  and  teams  wait  un- 
til the  gates  are  opened;^  to  unnecessarily  and  wantonly 
sound  a  whistle  near  a  highway.*  But  the  following  have 
been  held  not  negligence,  viz.:  To  omit  to  erect  barriers  to 
prevent  the  horses  of  travelers  from  taking  fright  while 
traveling  o  i  a  turnpike  owned  by  the  railwiiy  company, 
running  nearly  parallel  with  the  railway  and  near  to  it;* 
the  sounding  of  a  whistle  by  an  engineer  when  he  first  sees 
a  team  on  the  track,  though  the  horse  be  thereby  frightened 
and  contribute  to  the  injury.®  But  where  by  statute  rail- 
roads arc  required  to  give  signals  at  crossings,  an  omis- 
sion to  do  this,  whereby  a  person  is  not  able  to  secure  his 
horse,  and  it  takes  fright  at  the  passing  train,  renders  the 
railroad  liable.^ 

Illustrations.  —  An  express  t'-ain  wept  towards  a  bridge 
without  sounding  the  usual  whistle  at  a  post  one  hundred  yards 
distant.  A  traveler,  not  aware  thai  a  train  was  approaching, 
drove  upon  tiie  bridge.  While  upon  the  bridge,  the  train  jjassed 
under  it,  and  m  passing  under  it  the  steam-whistle  was  sounded, 
whereat  the  traveler's  horse  took  fright  and  ran  away,  and  he 
was  injured.  Held,  that  whether  the  railroad  company  was  neg- 
ligent in  not  sounding  the  whistle  on  approaching  the  l>ridge 
was  properly  submitted  to  the  jury,  and  a  judgment  for  dam- 
ages was  affirmed:  Pennsylvania  R.  R.  Go.  v.  BarneH,T)\i  Pa.  St. 
239;  98  Am.  Dec.  346.  A  railway  train  was  standing  at  a 
highway  crossing,  divided  so  as  to  leave  a  space  twenty-five  feet 
wide  for  travelers  to  pass  through, .its  cars  occupying  some  of 


'  Pennsylvania  etc.  R.  R.  Co.  v. 
Burnett,  59  Pa.  St.  259;  98  Am.  Dec. 
34(i. 

■Bnrst  «.  R.  R,  Co.,  4  Hun,  346. 

'  Mauoliester  etc.  R.  R.  Co.  v.  Ful- 
larton,  14  Com.  B.,  N.  S.,  353. 

*  BiUiuany.  R.  R.  Co.,  70  Ind.  166; 
40  Am.  Rep.  230;  Pennsylvania  etc. 
R.  R.  Co.  V.  Barnett,  59  Pa.  St.  259; 
98  Am.  Dec.  346;  Georgia  etc.  R.  R. 
Co. «).  Carr,  73  Ga.  557;  Louiaville  etc. 


R.  R.   Co.  V.  Lpton,    IS    III.   App. 
605. 

•""  Coy  V.  R.  R.  Co.,  23  Barb.  643. 

« Schaefert  v.  R.  H.  Co.  62  Iowa, 
624. 

'Norton  v.  R.  R.  Co.,  113  Mass. 
366;  Wakefield  v.  R.  R.  Co.,  37  Vt. 
330;  86  Am.  Dec.  711;  Pennsylvania 
R.  R.  Co.  V.  Barnett,  59  Pa.  St. 
259;  98  Am.  Dec.  346;  Cosgrove  v.  R. 
R.  Co.,  87  N.  Y.  88;  41  Am.  Rep.  355. 


§  1177 


KEOLIOENCE. 


20G4 


the  highway.  A  traveler  drove  down  with  horse  and  wnpon, 
and  hesitated  about  crossing,  but  an  employee  of  the  company 
beckoned  to  iiini  to  come  on.  Ho  drove  quietly  across  and  had 
reached  the  other  side,  when  his  horse,  a  gentle  animal,  took 
fright  at  a  noise  made  by  some  of  the  train-men  in  shifting  tho 
brakes.  The  horse  started  to  run,  the  traveler  drew  the  nins 
tightly  to  hold  him  back,  when  one  of  them  parted,  so  that  in 
consequence  of  the  strain  on  the  rein  the  horse  was  turned  to 
one  side,  the  wagon  turned  over  an  embankment,  an<l  the 
occupants  thrown  out  and  the  plaintiff's  wife  injured,  lldd, 
that  a  verdict  against  tho  company  would  be  afhrmed:  J'mn- 
sylvania  R.  It.  Co.  v.  Horst,  110  Pa.  St.  221.  A  before  cross- 
ing a  track  in  his  buggy  stopped,  looked,  and  listened.  Tho 
view  of  the  track  being  obstructed  by  weeds,  he  saw  notliing, 
and  a  train  came  by  without  a  whistle  or  warning,  frightening 
A's  horse,  and  throwing  him  out.  Held,  that  A  had  a  Ht!;ht  of 
action:  Chimgo  etc.  R.  R.  Co.  v.  McGaha,  19111.  App.  342.  W. 
was  engaged  in  peddling  kindling  wood  with  a  horse  and 
wagon,  in  a  city  street,  near  a  railroad  crossing.  The  rails  were 
laid  without  any  planking  or  filling.  While  W.  was  very  near 
the  team  soliciting  a  customer,  an  approaching  train  frightened 
the  horse,  and  it  ran  partly  across  the  track,  but  owing  to  the 
absence  of  planking  or  filling,  the  wheels  of  the  wagon  were  pre- 
vented from  crossing.  W.  instantly  started  in  pursuit  on  the 
horse's  rnniiing,  and  caught  the  horse  on  the  track,  and  while 
there  endeavoring  to  get  it  oflF  the  track,  he  was  struck  l>y  the 
train  and  killed.  The  horse  had  not  been  tied,  and  W.  was  not 
holding  him.  There  was  a  city  ordinance  forbidding  any  man 
to  leave  his  liorse  in  the  street  unless  securely  tied.  The  train 
was  running  at  a  rate  forbidden  by  a  city  ordinance.  Held,  that 
a  verdict  in  favor  of  W.'s  representatives  should  be  sustained: 
Wasmer  v.  Delmvare  R.  R.  Co.,  86  N.  Y.  212;  36  Am.  Rep.  008. 


§  1177.  Obstruction  of  Streets  by  Railroad  Trains.— 
The  privilege  given  by  statute  or  charter  to  railroads  to 
place  their  tracks  across  highways  gives  them  no  rij^ht  to 
obstruct  tho  highway  by  standing  cars  or  otherwise,'  and 
they  are  liable  for  injury  caused  thereby.^  The  riglit  to 
extend  a  switch  track  into  a  highway  gives  it  no  right  to 
store  its  cars  there,  and  it  may  be  charged  with  negligence 


»  state  V.  R.  R.  Co.,  25  N.  J.  L.  437: 
State  V.  R.  R.  Co.,  59  Me.  189;  Rauch 
V.  Lloyd.  31  Pa.  St.  358;  72  Am.  Dec. 
747;  R.  R.  Co.  v.  Decatur,  33  lU.  381. 


»  Rauch  V.  Lloyd,  31  Pa.  St.  358;  72 
Am.  Dec.  747;  McCoy  v.  R.  R.  Co.,  5 
Del.  529. 


20G4 

md  wnpon, 
J  company 
SH  iuid  liiid 
iiriial.  touk 
liiftin^'  tlie 
'  the  reins 
so  that  in 
3  turned  to 
t,  tind  the 
red.  Held, 
lod:  J'rnn- 
iforo  cross- 
Jned.  The 
w  nothing, 
frightening 
a  rit^ht  of 
3.  342.  W. 
horse  and 
3  rails  were 
I  very  near 
frightened 
ving  to  the 
1  Avcre  pre- 
mil  on  the 
and  while 
iick  by  the 
iV.  was  not 
g  any  man 
The  train 
IIcl(l,_  that 
sustained: 
.  Rep.  608. 


2065 


1NJT7HIE8  BY  RAILROADS. 


t   tl  't  ^  ^^^^ 

^^■^""  being  thrown   Lll    h     ^     '  '"'*""^^^^  "'^  i"Jury 

'^^'^"  ,^:i.''t  at  thoL'::;  Lt;r  ;;'^  d^^^^^^  ^^^'^-^ 

special  injury,  as  the  inahilitv  1  ^  ^"'  sustaining 
'■--  tbe  neglect  of  a  rTiSl' '^'^^  °^  ^ointment: 
--  to  obstruct  a  higC!  forT^"^  ^"  Torniitting  its 
a"-ved  by  statute,  n.fy  2  j^^^^^^  *-"«  than  that 

-'•  -  l<^ft  at  a  cr;sing  o  neZr  T''''  ^'  '  ^^^^^^ad 
14^lnvay  that  a  wagon^cann  t  L.  r''''  ^^^^  ''  the 
whi/lletrees  coming^n  coXt  w /.T^'"*  '^^  ^^^^^^^  or 
obstruction  of  the^ngh  J  "' "f  .f  .^  ^"^I^^s,  it  is  an 
higlnvay  for  a  longer  ^ti in  ihan.)!  '  ''  '^^*^"^*«  the 
frigl^tens  a  horse  altach  d  to  a  1  "'1^''  ^^"^"«'  ^^^ 
and  injures  the  driver  the  I.  ^"""^  ""^"^^^  ^»°«  away 

P-f  d  the  driver^::;:;^   ^HaT^^^V^^^^^    ^^^^-^-' 
"ot  due  to  the  vice  of  the  horse  a    ?       cf  '''^''^"*  ^^^ 
case  It  appeared  that  a  horse  had  K    I  ^    ^^^  ^^^«^i"« 
^a^tcnings,  and  had  pursued  ,tf      '^'"^  ^''''  ^^«»^  its. 
towards  its  owner's  house    nnflT'''^"^'"^  ^  ^^^b^^y 
7ssing,and  then,  on  account  o       .''"^^  '^  ^  ^^^^^^^ 
"•^'-1^  bad  remain;d  s^andin^  u'    T  ''  ^^^^S^^t-cars 
^«rljiu  the  evening,  and  whicL^        ^"  "'"^^^"^  «i^ce 
passing,  it  wandered  alotretfT"/'^  '^'  ''^'^^  ^^om 
«^-t  eleven  o'clock,  p  m  IvheVth         .'''  ^^^^^^^^  ""til 
eanie  up  and  killed  it.     The  coif??!    ,^^'''"S'^  train 
'-^  of  the  public  road  wa   a  wron    f^  '^'''  '""^  '^^^^^o- 
;''icl^underthecircun.    Ler^^^^^^  by  the  company, 

'i'e  plaintiff  to  a  recovery  even   rH^Mr-^^'^^'^^^^tled 
-S-'  train  had  been  st^to  i,l  ,o^  ^^^  '^  ^^^  P- 
>^as  concerned,  wholly  acc^der^Vnl     '  .  ?/  ^'  ^^^*  train 
"-  obstruction  of  a  h^h  v"'  b '  !  T    ,^^^^^^--^     But 
^-^  ^^  -  not  the  pro^i^J,  t:^':^^:^  ''^''t'''' 

b-^-a  .  R.  R.  Co.,  56  Mich.'    ^^/-M  '•  ""■  ""•  '^•'  ^  ^^^'• 


§  1178 


NEGLIGENCE. 


20CG 


a  driver,  ^vho  is  waiting  to  get  across  the  track,  may  suf- 
fer from  having  his  horses  frightened  by  a  passing  train 
wliilu  lie  is  detained  there.' 

Illustuations.  —  Plaintiff  in  going  to  his  business  found  a 
train  of  cjirs  across  the  street.  Having  waited  some  minutes 
and  (he  train  not  moving,  he  endeavored  to  cross  tlio  track  In- 
cliniliiiig  between  the  cars,  when  the  train  was  started  without 
warning  or  notice,  and  he  was  injured.  Held,  that  his  conduct 
did  not  prevent  his  recovery  of  damages:  Spencer  v.  li.  11.  Cu. 
4  Mackay,  138;  54  Am.  Rep.  269. 

§  1178.  Street-car  Companies.  —  Injuries  to  Travelers. 
—  A  person  walking  or  driving  on  a  horse-car  track  is 
not  a  trespasser.^  The  street-car  company' has  not  an 
exclusive  right  to  the  track;  it  has  simply  tho  right  of 
way.^  A  street-railway  company  in  running  its  cars  i? 
obliged  to  use  towards  strangers  on  the  streets,  not  the 
high  care  of  a  carrier  towards  his  passengers,  but  tho  care 
of  tho  driver  of  any  vehicle, — that  is  to  say,  ordinary 
care;^  though  there  are  cases  holding  it  to  the  highest 


»  Selleck  v.  R.  R.  Co..  58  Mich.  195. 

''  Shea  V.  R.  R.  Co.,  44  Ca'  414; 
Lynam  v.  K.  R.  Co.,  114  Mass.  8.3,  the 
court  saying:  "Tho  cases  relating  to 
iujuriea  sull'ercd  by  being  struck  by  a 
loconiotlvo-engino  at  a  railroad  cross- 
ing aflord  no  test  of  the  degree  of  care 
reijuired  of  the  plaintiff  in  this  case. 
Tho  cars  of  a  horse-railway  have  not 
the  same  right  to  the  use  of  the  track 
over  wliich  they  travel,  do  not  run  at 
the  same  speed,  are  not  attended  with 
the  same  danger,  and  f>re  not  so  diffi- 
cult to  check  quickly  and  suddenly, 
as  those  of  an  ordinary  railroad  corpo- 
ration. A  person  lawfully  traveling 
upon  the  highway  is  not,  therefore, 
bound  to  exercise  the  same  degree  of 
watchfulness  and  attention  to  avoid 
the  one  as  to  keep  himself  out  of  the 
way  of  the  other. ' 

"  Adolph  V.  R.  R.  Co.,  11  Jones  & 
S.  199;  05  N.  Y.  554;  Shea  v.  R.  R. 
Co.,  44  Cal.  428;  Albert  v.  R.  R.  Co. 
2  Daly,  389;  Cohen  v.  R.  R.  Co.,  69 
N.  Y.  170;  8  Jones  &  S.  368;  Mentz 
V.  R.  R.  Co.,  3  Abb.  App.  274;  2  Rob. 
(N,  Y.)  356;  BarksduU  v.  R.  R.  Co.,  23 


La.  Ann.  180;  Railroad  Co.  r.  Glad- 
mon,  15  Wall.  401.  Some  cano-i  hoM 
to  tlie  view  that  the  railroad  1ms  the 
exclusive  right:  Hegan  v.  R.  R.  Co., 
15  N.  Y.  380;  Wilbrand  v.  K.  It.  Co., 
3  Bosw.  314;  Barker  v.  R.  K.  Co.,  4 
Daly,  274;  Johnson  v.  R.  R.  Co.,  27 
La.  Ann.  53.  While  it  ha.sl)eciilicl(l, 
on  the  other  hand,  that  the  riglit  ot 
the  citizen  is  paramount:  GoVLiniiiciit 
Street  R.  R.  Co.  v.  Hanlon,  o.i  Al;i, 
70.  The  rule  as  stated  in  tliu  text. 
however,  seems  tho  best  supiidi-tod. 

*  Pendleton  etc.  R.  R.  Co.  r.  Shms. 
18  Ohio  St.  255;  Pendleton  etc;.  R.  E, 
Co.  V.  Stallman,  22  Ohio  St.  1,  'Jl!;  Bal- 
timore etc.  R.  R.  Co.  V.  McKniincH. 
43  Md.  534-553;  Gilligan  v.  R.  K. 
Co.,  1  E.  D.  Smith,  453,  457;  Gumbi. 
R.  R.  Co.,  53  N.  Y.  Sup.  Ct.  466. 
Unger  v.  R.  R.  Co.,  51  N.  Y.  i'Ti,  the 
court  saying:  "It  is  arguoil  that  a 
strsot-railway  company  i.s  Ijound  tn 
adopt  every  improvement,  and  to  use 
every  precaution,  for  the  purpose  of  i 
meeting  an  unforeseen  occurrence,  au  1 
preventing  injuries  to  travelers  upn 
the  streets  aa  well  as  passengers  iu  tlie 


20G7 


INJURIES   BY    RAILROADS. 


§1178 


degree  of  care  and  vigilance.^  Thus  if  the  horses  of  a 
streot-car  company  break  loose  from  a  car  and  injure  a 
traveler,  in  the  absence  of  other  inculpatory  evidence  the 
company  will  bo  discharged  from  liability  by  showing 
that  the  horses  were  coupled  to  the  car,  not  by  the  most 
secure  method  possible,  but  by  the  method  then  in  gen- 
eral use  among  such  companies.^ 

Tlie  following  have  been  held  to  amount  to  negligence 
ill  tlie  driver,  or  those  in  charge  of  the  car,  viz.:  For  the 
driver  to  be  looking  back  instead  of  forward;'  to  allow 
his  attention  to  be  distracted  by  the  appearance  of  a  young 
lady  at  a  street-door,*  or  to  gaze  at  a  fire  in  the  neighbor- 
hood;^ or  to  wind  the  lines  about  the  brake,  and  sit  down 
to  examine  a  pigeon;®  or  to  turn  his  face  away  from  his 
horse,  to  engage  in  conversation  upon  private  matters 
with  a  friend  upon  the  platform;''  or  not  to  have  the  lines 


cars;  and  he  seeks  to  apply  the  same 
nlu  Hi  to  diligeucc  and  care  which 
has  in  many  cases  been  applied  to  rail- 
way companies  whose  cars  are  drawn 
liy  ^tuaiii  in  the  constrnction  of  their 
Ciirs  with  the  view  to  the  safety  of 
passLiigers  therein.  The  argument  is 
ckaily  unsound.  The  degre?  of  care 
wliicl]  a  person  owing  diliganco  must 
I'Xt'iciso  depends  upon  tlie  hazards  and 
daiigcis  which  he  may  expect  to  en- 
ccmiitLr,  and  upon  the  consequences 
wiiitli  may  be  expected  to  flow  from 
liis  ingligeuce.  Railroad  companies, 
wliosi'  uiirs  are  drawn  by  steam  at  a 
liigli  rate  of  speed,  are  held  to  the 
gruati'st  skill,  care,  and  diligence  in 
the  luaiuifdcture  of  their  cars  and  en- 
gines, anil  in  the  management  of  their 
roails,  because  of  the  great  danger, 
from  tlieir  hazardous  mode  of  convey- 
ance, to  human  life  in  case  of  any  iieg- 
li;;eiRo.  But  the  same  degree  of  care 
ami  skill  is  not  required  from  carriers 
of  ii:i>.si;ngers  by  stage-coaches,  and 
lortliu  .same  reason  is  not  required fe'om 
the  ran  iers  of  passengers  upon  street- 
cars ilrawn  by  horses.  It  would  be  a 
very  luud  and  unwise  rule  which  would 
reijuire  of  the  owner  of  every  vehicle 
driven  iu  the  streets  of  a  city  that  he 


me,  in  tlio  construction  of  his  carriage, 
and  in  the  harness  of  his  horses,  and 
all  the  meihis  by  whicii  tliey  are  at- 
tached to  the  vehicle,  the  l)ost  methods 
which  hunum  skill  and  ingenuity  have 
contriveil  and  brought  into  use,  to  pre- 
vent accidents  to  pedestrians  in  the 
streets.  Such  a  rule  has  not  been, 
and  probably  never  will  be,  adopted." 

iLiddy  V.  R.  R.  C,  40  Mo.  506; 
Johnson  r.  R.  R.  Co.,  20  N.  Y.  G5.  A 
street-railway  company  is  bound  to 
exercise  the  highest  degree  of  dili- 
gence to  discover  and  avoid  injuring 
ayoungcliild  on  its  track:  Galveston 
City  R.  R.  Co.  v.  Hewitt,  G7  Tex. 
473;  (50  Am.  Rep.  32. 

■^Uuger  V.  R.  R.  Co.,  51  N.  Y. 
497. 

^Collins  V.  R.  R.  Co.,  142  Mass. 
301;  50  Am.  Rep.  675. 

*  Baltimore  etc.  R.  R.  Co.  v,  Mc- 
Donnell, 43  Md.  534,  553. 

•'  Commonwealth  v.  R.  R.  Co.,  107 
Mass.  230. 

«  Mangam  v.  R.  R.  Co.,  38  N.  Y. 
455;   5)8  Am.  Dec.  66;  36  Barb.  230. 

"  Meiitz  r.  R.  R.  Co.,  3  Abb.  App. 
274;  affirming  2  Rob.  (N.  Y.)  356; 
Ol.lfield  V.  R.  R.  Co.,  14  N.  Y.  310; 
3  E.  D.  Smith,  103. 


§  1178 


N£aLiaENC£. 


20G8 


and  brtike  under  his  control;'  or  not  to  check  the  spccl 
at  crortsings, especially  at  night;''  or  to  attempt  to  pa>s  u 
vehicle  which  he  sees  dangerously  close;  *  or  to  drive  at  u 
rate  of  s])eed  forbidden  by  a  city  ordinance;*  or  the  start- 
ing  up  of  the  horses  in  a  city  street  while  the  ihivor 
is  inside  collecting  faros;*"'  or  not  to  exhibit  lights  on  iu 
cars  at  night,  to  notify  persons  of  their  approach."  Uut 
not  to  look  at  a  passenger  getting  aboard;^  nor  not  to  i^top 
because  a  person  is  approaching  the  track ;^  nor  tc  luok 
at  one  side  of  the  car  at  a  dangerous  object,  though  tlioro 
may  be  imminent  danger  on  the  other;"  nor  not  to  kccjta 
lookout  for  danger  after  the  car  has  passed.'"  When  the 
accident  takes  place  on  account  of  defective  machinery 
on  the  car,  it  is  no  defense  to  the  company  which  sup. 
piled  the  driver  and  horses  that  the  car  was  owned  liy 
another  company."  An  ordinance  that  conductors  of  cars 
shall  stop  them  and  cross  the  tracks  of  steam-railroads 
in  advance  of  them,  under  a  penalty,  has  no  application 
to  curs  where  the  same  person  acts  as  comiuctor  aud 
driver.'^ 

Illustrations.  —  A,  while  drunk,  lay  down  on  a  streot-car 
track,  and  the  driver  of  the  car,  though  seeing  an  object  which 
he  thought  to  be  a  bundle  of  grain,  made  no  effort  to  etoj)  his 
car,  in  which  he  could  have  easily  succeeded,  but  drove  directly 
over  A,  and  so  killed  him.  Held,  that  the  company  was  liahk>: 
Werner  v.  R.  R.  Co.,  81  Mo.  368.  The  driver  of  a  streut-cnr 
observing  a  woman  driving  in  a  buggy  ahead,  and  being  altle 
to  stop  the  car  in  time  for  the  buggy  to  pass  out  of  danger. 
nevertheless  drove  at  an  extraordinary  speed,  and  crowding'  the 
buggy  into  a  narrow  space  between  a  sand-bank  and  the  tr;ick, 


'  Peudril  V.  R.  R.  Co.,  2  Jones  &  S. 
483;  43  How.  Pr.  399. 

■'  West  Phila.  R.  R.  Co.  v.  Mulhair, 
7  Rep.  mi. 

»  Alhurt  V.  R.  R.  Co.,  2  Daly,  389; 
Cobea  r.  R.  R.  Co.,  8  Jones  &  S.  308; 
69  N.  Y.  170. 

♦  Hanlou  v.  R.  R.  Co.,  129  Mass.  301. 

*  Saare  v.  R.  R.  Co.,  20  Mo.  App. 
211. 

« Shea  V.  R.  R.  Co.,  44  Cal.  414; 
Johnaou  v.  R.  R.  Co.,  20  N.  Y.  65. 


'  Citizens'  etc.  R.  R.  Co.  v.  Carey, 
56  Ind.  390. 

8  Phila.  etc.  R.  R.  Co.  v.  Iliurice, 
92  Pa.  St.  431 ;  37  Am.  Rep.  O'J'.t. 

»  Boland  v.  R.  R.  Co.,  30  M...  4S4. 

''*  Lawrence  v,  R.  R.  Co.,  1  Cin.  lUp. 
180. 

"  Wcyant  v.  R.  R.  Co.,  3  Due.-,  300; 
Jetter  v.  R.  R.  Co.,  2  Keyes,  l.')4. 

'•^Philadelphia  etc.  R.  R.  Co.  r. 
Boyer,  97  Pa.  St.  91. 


20C9 


INJURIES   BY   RAILROADS. 


§  1170 


fit  ruck  and  injured  it.  Held,  that  the  company  wnH  liable: 
CmzcaH'  Street  It.  R.  Co,  v.  Steen,  42  Ark.  321.  Tho  liorses  at- 
tached to  a  Btreet-car,  after  pulling  it  part  way  up  a  ferry-drop, 
titoppcd,  and  the  driver  applied  the  brake  and  held  the  cur 
stiitiomiry.  C,  who  was  driving  a  wagon  with  two  horscH  at- 
tached to  it,  was  about  ten  feet  behind  the  ear  when  it  started, 
and  followed  after  it,  and  another  team  followed  him.  The 
defendants  usually  had  an  extra  horse  to  help  to  pull  the  car  up 
tlie  drop,  but  on  this  occasion  there  was  none.  The  <lriver  of 
the  ear,  noi  being  able  to  stop  the  car,  it  came  back  upon  the 
horses  of  C,  and  injured  them,  C.  being  unable  to  get  out  of  the 
nay.  In  an  action  against  the  railway  company,  held,  that 
tlie  company  was  liable:  Cook  v.  li.  li.  Co.,  98  Mass.  o'M.  A 
chil<l  two  years  old  ran  across  the  track  of  a  horse-railroad 
company,  and  was  run  over  and  killed  by  one  of  their  cars. 
By-standers  shouted  to  the  driver  to  stop,  but  his  attention  was 
turned  in  another  direction.  He  was  driving  slowly  and  cau- 
tiously. Held,  that  the  company  was  not  liable:  Boland  v.  It.  R. 
Co.,  3(»  Mo.  484.  A  man  on  horseback,  riding  near  a  hor^"- 
car,  fell  on  the  track  in  front  of  the  car,  which  ran  over  hiui, 
//('/(/,  that  if  the  driver  wa^  not  at  his  brakes  and  horses,  where 
he  might  have  stopped  tlie  car,  but  inside  tl.o  car,  this  was 
negligence  imputable  to  the  car  company:  Brooks  v.  R.  R.  Co., 
22  Neb.  816. 

§  1179.  Street-cars  —  Contributory  Negfligence  of  Trav- 
eler.—  It  has  been  held  contributory  negligence  to  attempt 
to  get  on  a  car  from  the  space  between  two  tracks  on  seeing 
another  car  approach  on  a  parallel  track;'  the  attempt  by 
the  driver  of  a  vehicle  to  pass  between  an  approaching 
car  and  a  wagon  at  the  curb;'*  to  drive  a  team  so  near  to 
a  street-car  track  that  it  is  struck  by  a  passing  car;'  and 
where  a  pedestrian,  in  the  night-time,  overcome  by  the  in- 
fluence of  liquor,  falls,  in  a  drunken  stupor,  upon  the 
track  of  a  street-railway  company,  and  is  afterwards  run 
over  and  killed  by  a  passing  car,  the  company  is  not 
liable,  unless  the  driver  of  the  car,  after  the  deceased  was 
discovered,  could,  by  the  exercise  of  reasonable  care  and 
prudence,  have  prevented  the  accident.*   It  is  negligence 

'  Ualpia  V.  R.  R.  Co.,  8  Jones  &  S.  *  Spaulding    v.    Jarvis,    32     Him, 

175.  621. 

^  Barker  V.  R.  R.  Co.,  4  Daly,  274;  ♦Button  v.   R.   R.   Co.,  18  N.   Y. 

Meruiur  i;.  R.  R.  Co.,  23  La.  Ana,  264.  248. 


§1179 


NEGUQEITCE. 


2070 


to  drive  upon  a  street-railway  -without  looking  around,  and 
it  is  unlawful  to  drive  along  such  track  and  willfully  ob- 
struct  the  cars.^  ,  It  is  the  duty  of  a  traveler  upon  a  stroet 
on  which  is  a  street-rail >vay  to  listen  to  whatever  signal 
there  may  he  from  an  approaching  cai,  and  to  look  bo- 
hind  him  from  time  to  time,  so  that  if  the  car  is  near  he 
may  turn  off  and  allow  it  to  pass  without  undue  slacken- 
ing of  ordinary  speed.''    The  driver  of  a  vehicle  is  not 
bound  to  guard  against  an  unlooked  for  movement  of  a 
street-car  which  he  is  following  at  a  reasonably  sale  dis- 
tance  behind;  as  where   the   plaintiff  was    following  a 
street-car  full  of  passengers  up  a  steep  ascent,  and  the 
car,  through  the  carelessness  of  the  driver,  suddenly  slid 
backwards  upon  the  plaintiff's  horses,  which  were  a]jout 
twenty  feet  behind,  and  injured  them,  in  spite  of  tne  best 
efforts  of  the  plaintiff  to  get  them  out  of  the  way.^    When 
a  vehicle  and  a  railway-car  are  going  side  by  side  in  the 
same  direction,  with  a  clear  space  of  nearly  two  feet  be- 
tween them,  in  case  of  a  collision  the   presumption  of 
negligence  is  altogether  against  the  driver  of  the  curt, 
and  not  against  that  of  the  car;  for  the  reason  that  the 
former  can  deviate  from  the  track,  while  the  latter  can- 
not.*     But  a  pedestrian  is  not  negligent  in  not  anticipat- 
ing  an  accident  which  may  leave  him  helpless,  and  is  not 
bound  to  refrain  from  crossing  the  track  because  a  car  is 
likely  to  strike  him  in  case  he  should  fall  on  the  track  by 
some  such  accident,  and  lie  there,  unable  to  rise;  because 
such  a  result  is  out  of  the  usual  course  of  events,  and  not 
such  as  the  pedestrian  is  bound,  in  the  exercise  of  ordi- 
nary care,  to  anticipate  and  provide  for;  ^  nor  is  it  negli- 
gence  per  se  not  to  look  both  ways  and  listen,  as  in  the 


1  Wood  V.  R.  R.  Co.,  52  Mich.  402; 
50  Aia.  Rep.  259;  Jatho  v.  R.  R.  Co., 
4  Phila.  2-4. 

■'  Adolph  V.  R.  R.  Co.,  76  N.  Y. 
610. 

»  Cook  V.  R.  R.  Co.,  98  Mass.  361. 


*Suydam  v.  R.  R.  Co.,  41  Barb. 
375. 

*  Mentz  V.  R.  R.  Co.,  3  Abl..  App. 
274;  2  Rob.  (N.  Y.)  356;  Baxtir  r.  K. 
R.  Co.,  30How.Pr.  219;  3  Rob.  (N.Y.) 
510. 


2071 


INJURIES   BY  RAILROADS. 


1180 


case  of  steam-railroads.*  Where  a  man  marching  in  a 
procession  is  run  into  by  a  street-car,  the  same  rule  of 
contributory  negligence  applies  as  in  the  case  of  an  ordi- 
nary traveler  on  the  street.^ 

Illustrations. —  Plaintiflf,  while  engaged  in  running  a  tele- 
grpph-wire  across  a  street  where  the  company  had  no  legal 
right  to  run  wires,  was  thrown  from  a  pole  by  a  passing  street- 
car, which  caught  the  slack  of  the  wire.  Held,  that  plaintiff 
was  a  wrong-doer,  and  could  not  recover  from  the  street-car 
company:  Banks  v.  R.  R.  Co.,  136  Mass.  485.  A  woman  crossed 
a  street-railroad  track,  leading  a  child.  The  child's  foot  caught 
in  a  hole  by  the  track,  and  before  it  could  be  extricated,  it  was 
run  over  by  a  car  which  was  going  rapidly,  and  had  a  defective 
brake.  There  was  time  to  have  crossed  in  safety  but  for  the 
accident.  Held,  that  the  company  were  liable:  Aaron  v.  R.  R. 
Co.,  2  Daly,  127. 

§  1180.  Itailroad  Crossing  —  Rights  of  Public  and 
Railroad  —  Liability  of  Railroad  for  Injuries.  —  Where 
a  railroad  track  crosses  a  public  highway,  both  a  traveler 
aud  the  railroad  have  equal  rights  to  cross,  but  the  trav- 
eler must  yield  the  right  of  way  to  an  approaching  train.* 
The  obligations  of  railroads  and  travelers  on  highways 
are  mutual,  the  same  degree  of  care*  being  required  of 
each.*  A  person  has  the  right  to  cross  a  railroad  at  a 
crossing  anywhere  within  the  highway,  even  if  a  foot- 
walk  has  been  made  across  the  railroad.®  Where  a  rail- 
road track  is  laid  along  a  public  street,  a  traveler  has  a 
right  to  cross  it  at  any  point.®     To  hold  the  railroad  re- 


'  Lvnam  ?>.  R.  R.  Co.,  114  Mass.  83; 
Meutz  r.  R.  R.  Co.,  2  Rob.  (N.  Y.) 
35lj;  :i  Abl).  App.  274.  Contra,  Kolly 
V.  Htndrie,  20  Mich.  255. 

^ Blown  V.  R.  R.  Co.,  50  N.  Y.  Sup. 
Ct.  lOG. 

» Black  V.  R.  R.  Co.,  38  Iowa,  515; 
Mailisnii  etc.  R.  R.  v.  Tafifo,  37  Intl. 
S61,  'MH;  I'unusylvania  R.  R.  Co.  v. 
Krick,  47  Iiul.  368,  371;  Chicago  etc. 
R.  R.  Co.  V.  Hatch,  79  111.  137;  Illi- 
nois etc.  U.  R.  Co.  V.  Benton,  01)  111. 
174;  Luavcuworth  etc.  R.  R.  Co.  v. 
Bico,  10  Kan.  426;  Warner  v.  R.  R. 


Co.,  44  N.  Y.  4C5;  North  Pa.  R.  R. 
Co.  V.  Heilenian,  49  Pa.  .St.  (iO;  Sii 
Am.  Dec.  482;  Ohio  etc.  R.  R.  Co.  o. 
Walker,  113  Ind.  190;  3  Am.  St.  Rep. 
638. 

*  Indianapolis  etc.  R.  R.  Co.  v.  Mc- 
Lin,  82  Ind.  435. 

*  Louisville  etc.  R'y  Co.  v.  Head,  80 
lud.  117. 

«  Baltimore  etc.  R.  R.  Co.  )-.  Fitz- 
Patrick,  35  Md.  32;  Paducah  etc. 
R.  R.  Co.  V.  Hoehl,  12  Bu.sli,  50.  And 
see  also  Matze  v.  R.  R.  Co.,  1  Uun, 
417. 


§1180 


NEGLIGENCE. 


2072 


sponsible  for  an  injury  to  a  traveler  at  a  highway,  it  is  not 
enough  that  the  casualty  occurred  without  any  negligence 
on  the  part  of  either/  but  some  negligence  on  the  pint  of 
the  railroad  must  be  shown.''  It  is  not  essential  that  the 
road  shall  be  formally  located  and  accepted  as  a  public 
road;  it  is  sufficient  that  it  has  been  used  as  such  with 
the  consent,  express  or  implied,  of  the  owner.^  The  com- 
pany  is  liable  for  an  injury  occasioned  to  a  traveler  by  a 
want  of  repair  in  the  approaches  to  the  crossing.* 

Illusi -RATIONS.  —  A  railroad  company  left  an  unnecessarily 
large  space  between  the  rail  and  a  plank  placed  busido  it  to 
facilitate  the  crossing  by  teams.  Held,  liable  to  the  owner  of  a 
horse  fatally  injured  by  catching  therein  and  wrenching  of!' one 
of  his  hoofs:  Cuddeback  v.  JeweU,  20  Hun,  187.  A  railroad  train 
rounded  a  curve  in  ^he  road,  a  heavily  loaded  wagon  with  horses 
attached  was  in  full  view  a  few  hundred  feet  distant  and  sta- 
tionary across  the  track.  The  engineer  saw  the  wagon  in  time 
to  stop  the  train  and  avoid  a  collision,  but  did  not  immediately 
take  measures  to  do  so,  thinking  that  the  wagon  would  bo  re- 
moved. The  wagon  could  not  be  removed  in  time,  and  the  train 
ran  into  it,  injuring  it  and  the  horses.  Held,  that  the  company 
was  liable:  Chicago  etc.  R.  R.  Co.  v.  Hogarth,  38  111.  370.  A 
railroad  constructed  its  road  across  the  main  street  of  a  village 
about  a  foot  and  a  half  above  the  level  of  the  street.  The  street 
was  twelve  rods  wide,  with  two  traveled  paths,  one  on  each  side 
of  the  street,  and  an  open  common  between.  The  company  was 
required  by  its  charter  to  restore  any  highway  intersected  so  as 
not  to  impair  its  usefulness.  The  company  put  the  two  traveled 
tracks  in  proper  condition  for  passing  with  vehicles,  but  nuide 
no  other  crossing.  About  midway  between  the  two  paths  tliey 
constructed  a  culvert  under  the  timbers  of  the  track,  to  let  the 
water  accumulating  from  rains  pass  through,  which  was  left 


'  Cosgrove  v.  R.  R.  Co.,  13  Hun, 
329;  Rothe  v.  R.  R.  Co.,  21  Wis.  25G; 
Schwartz  v.  R.  R.  Co.,  4  Robt.  347; 
Altreuter  ».  R.  R.  Co.,  2  E.  D.  Smith, 
151;  Zeiglcr  v.  R.  R.  Co.,  5  S.  C.  221; 
Evansville  R.  R.  Co.  v.  Lowdermilk, 
15  Iiid.  121. 

»  Com.  V.  R.  R.  Co.,  101  Mass.  201 ; 
Schwartz  v.  R.  R.  Co.,  4  Robt.  347. 
It  is  answerable  to  one  who  becomes 
fastened  uijon  its  track  in  the  streets 
of  a  city  because  of  negligence  in  the 
construction  of  such  track,  and  who 


while  so  fastened  is  injured  by  an  ap- 
proaching train,  though  the  eiiii)l(iyees 
of  the  company  did  not  see  him  nor 
know  of  his  helpless  condition:  Jjouis- 
vide  etc.  R.  R.  Co.  v.  Phillips,  112 
Ind.  59;  2  Am.  St.  Rep.  15"). 

^  Pittsburgh  etc.  R.  R.  Co.  v.  Duun, 
50  Pa.  St.  280,  284;  Weblj  r.  R.  R. 
Co.,  57  Mo.  117.  See  Sweeny  '•.  1'.  K. 
Co.,  10  Allen,  308;  87  Am.  Du(%  044; 
Delaney  v.  R.  R.  Co.,  3:{  Wia.  (17. 

*  Maltby  v.  R.  R.  Co.,  52  .Mich. 
108. 


2073 


INJURIES   BY   RAILROADS. 


§1181 


uncovered.  A  person  walking  across  the  street  upon  the  rail- 
road track,  at  a  time  when  the  culvert  was  filled  with  snow, 
and  could  not  be  seen,  fell  into  it,  and  was  injured.  Held,  that 
the  riiilroad  company  was  liable  for  the  injury:  Judson  v.  R.  R. 
Co.,  20  Conn.  434. 

§1181.    Degree  of  Care  Required   of  Railroad — In 

General.  —  In  the  absence  of  a  statute  prescribing  the 
degree  of  care  to  be  exercised  at  crossings,  railroad  com- 
panies are  bound  to  exercise  a  degree  of  skill,  prudence, 
and  care  in  proportion  to  the  danger.  A  less  degree  of 
care  is  required  than  in  the  carriage  of  a  passenger,  for 
there  is  no  contract  relation  between  the  company  and 
a  traveler.  In  case  of  a  collision  at  a  crossing,  the  com- 
pany is  exonerated  where  it  uses  such  reasonable  care  to 
avoid  the  collision  as  ordinary  prudence  would  suggest.^ 
And  what  that  care  shall  be  must  depend  upon  the  cir- 
cumstances of  each  case.^  A  greater  degree  of  vigilance 
is  required  at  street  crossings  in  a  populous  city  than  at 
the  crossings  of  a  country  road.'  The  fact  that  there  were 
visitors  in  the  cab  of  the  engine,  and  that  the  presence 
of  strangers  without  leave  was  prohibited  by  rule,  are 
proper  for  the  jury  to  consider,  with  other  circumstances, 
as  bearing  on  the  question  of  negligence.* 

Illustrations.  —  Plaintiff,  while  on  the  station  platfonn,  was 
struck  by  a  construction  train  of  peculiar  build.  He  had 
Btepped  back  far  enough  to  avoid  an  ordinary  train.  Ileldy 
that  he  had  a  right  of  action  against  the  railroad  company: 
SuUlran  v.  R.  R.  Co.,  39  La.  Ann.  800.  A  railroad  track  was 
laid  ill  a  public  street.  A  traveler  caught  his  foot  in  an  open- 
ing negligently  left  in  the  track,  and  was  struck  by  a  train 
which  was  negligently  managed.  Held,  that  the  railroad  com- 
pany was  liable:  Louisville  etc.  R.  R.  Co.  v.  Phillips^  112  Ind.59. 

'  Baltinioro  etc.  R.  R.  Co.  v.  Breinig, 
25  .\1,L  ;J7S;  90  Am.  Dec.  49;  Cleve 


3  Chicago  etc.  R.  R.  Co.  v.  Gretzner, 
46  III.    74,  84;  St.    Louis  etc.   R.  R. 


laud  etc.  R.  R.  Co.  v.  Terry,  8  Ohio    Co.    v.  Dunn,  78   III.    197;  Lafayette 

St.  570;  Brand  v.  R.  R.  Co.,  8   Barb.  '  '  """   '    '     "" 

3(iS;  WiUoughby  v.    R.    R.   Co.,  37 
I™.i,  4;!2. 
'  Muliyou  etc.  R.  R.  Co.  v.  Taffe,  37    v.  Krick,'  47  Ind.  3G8,  Ttl 


etc.  R.  R.  Co.  V.  Adams,  '2G  Ind.  76; 
Paducah  etc.  R.  R.  Co.  v.  Hoelil,  12 
Bush,  41,  45;  Pennsylvania  R.  R.  Co. 


H:W1;  state  v.  R.  R.  Co.,  52  N. 


*  Marcott  v.  R.  R.  Co.,  47  Mich.  1. 


§1182 


NEGUOENCB. 


2074 


§  1182.  Rate  of  Speed.  —  Unless  restrained  by  statute 
or  ordinance,  railroad  companies  may  run  their  trains 
at  the  highest  speed  consistent  with  the  safety  of  passen- 
gers and  freight.^  Hence  no  rate  of  speed  of  a  railroad 
train  is  negligence  per  se.^  But  circumstances  may  re- 
quire a  less  rate  of  speed,'  and  hence,  even  in  the  absence 
of  a  statute,  running  at  a  very  great  speed  over  crossings 
may  be  evidence  of  negligence.*  And  so  however  slow  a 
train  may  be  moving,  if  its  speed  might  have  been  still 
further  reduced  and  a  collision  thus  avoided,  the  company 
may  be  chargeable  with  negligence  in  not  further  re- 
ducing the  speed.®  There  is  no  obligation  on  a  railroad 
train  going  through  the  country,  in  the  absence  of  special 
circumstances,  to  slacken  its  speed  at  crossings,  or  because 
of  the  approach  on  the  road  of  vehicles.^  Nor  are  those 
in  charge  of  railway  trains,  when  they  see  a  traveler  ap- 
proaching, under  any  obligation  to  stop  the  train  in  an- 
ticipation of  his  attempting  to  cross.  Where  the  traveler 
has  a  fair  view  of  the  train,  and  the  usual  and  customary 
or  the  statutory  signals  are  made  to  give  warning  of  its  ap- 
proach, the  company's  servants  have  a  right  to  presume 
that  they  will  be  observed.^     It  is  negligence  in  a  railroad 


^  Chicago  etc.  R.  R.  Co.  v.  Givens, 

18  III.  App.  404.  It  is  not  an  en- 
gineer's duty  to  reverse  the  engine,  if 
the  train  is  moving  so  fast  that  to  do 
so  woukl  endanger  the  lives  of  the 
passengers,  although  a  collision  might 
thereby  be  averted:  Nashville  etc.  R. 
R.  Co.  V.  Troxlee,  1  Lea,  5'20. 

2  Young  V.  R.  R.  Co.,  79  Mo.  336; 
Main  v.  R.  R.  Co.,  18  Mo.  App.  388; 
Cohen  v.  R.  R.  Co.,  14Nev.37G;  Stepp 
t).  R.  R.  Co.,  85  Mo.  229;  Garland  v. 
R.  R.  Co.,  8  111.  App.  571;  Shjijkle- 
ford  V.  R.  R.  Co.,  84  Ky.  43;  4  Am. 
St.  Rep.  189. 

*  Reading  etc.  R.  R.  Co.  ?'.  Ritchie, 
102  Pa.  St.  425;  Duffy  v.  R.  R.  Co., 

19  Mo.  App.  380;  Terry  v.  Jewett,  78 
N.  Y.  338;  East  Tenn.  R.  R.  Co.  v. 
Deavcr,  79  Ala.  21G. 

♦  Artz  V.  R.  R.  Co.,  44  Iowa,  284; 
Black  V.   R.  R.  Co.,  38    Iowa,  516; 


Massoth  V.  Canal  Co.,  04  N.  Y.  531; 
Warner  v.  R.  R.  Co.,  44  N.  Y.  41).); 
Indianapolis  etc.  R.  R.  Co.  v.  Stablts, 
62  111.  313;  Chicago  etc.  R.  R.  Co.  r. 
Payne,  59  111.  534;  Rockfonl  otc.  R. 
R.  Co.  V.  Hillmer,  72  111.  2:!.-);  Wilds 
V.  R.  R.  Co.,  29  111.  315;  Reeves  -■.  R, 
R.  Co.,  30  Pa.  St.  454;  72  Am.  Dec. 
713;  Murray  v.  R.  R.  Co.,  10  Itiih. 
227;  70  Am.  Dec.  219. 

^Neier  v.  R.  R.  Co.,  12  Mo.  App. 
35. 

6  Chicago  etc.  R.  R.  Co.  r.  Har- 
wood,  80  111.  88;  Zeigler  v.  R.  K.  Co,, 
5S.C.  221;7S.  C.  402. 

'  St.  Louis  etc.  R.  R.  Co.  v.  Manly, 
58  111.  300;  Chicago  etc.  R.  K.  Co.  i: 
Harwood,  80  111.  88;  Chicago  etc.  R,  i 
R.  Co.  V.  Damerell,  81  111.  450;  Frazer 
V.  R.  R.  Co.,  81  Ala.  185;  CO  Am.  Ikp, 
145. 


2075 


INJURIES   BY   RAILROADS. 


§1182 


not  to  be  equipped  with  brakes  and  other  means  of  stop- 
ping the  train  which  other  railroads  use.*     So  it  is  negli- 
gence to  detach  a  car  on  a  railroad  track  where  persons  are 
liable  to  be  found,  and  send  it  out  of  sight  around  a  curve  on 
a  down  grade,  unattended  by  any  one  capable  of  checking 
it  in  case  of  danger.'^     The  rules  of  a  railroad  company 
regulating  the  distance  at  which  trains  chall  run  from 
each  other  are  intended  solely  for  the  protection  of  the 
property  of  the  company  and  the  safety  of  their  employees 
and  passengers,  and  not  for  persons  who  may  be  traveling 
along  the  highway;  and  no  inference  of  negligence  can  be 
drawn  from  the  proximity  of  the  trains,  in  an  action  to  re- 
cover damages  for  an  injury  done  to  a  person  while  cross- 
ing the  railroad  track  at  a  place  not  known  or  used  as  a 
public  crossing.^  If,  without  any  defect  in  the  head-light  or 
fault  on  the  part  of  the  employees,  the  light  becomes  by 
rain  or  other  natural  causes  so  obscured  that  the  lookout 
cannot  see  ahead,  the  railroad  company  is  not  necessarily 
liable  for  consequent  damages.     Instances  may  occur  in 
which  danger  from  collision  may  imperatively  demand 
that  the  train  proceed  at  all  events;  and  it  would  be  dif- 
ficult to  lay  down  any  rule  by  which  it  may  be  determined 
how  far  ahead  the  light  should  be  thrown  to  make  it  law- 
ful for  the  train  to  run.*     It  is  gross  negligence  in  the 
company  to  run  their  trains  at  greater  speed  than  pre- 
scribed by  statute  or  municipal  ordinance,^  although  be- 
fore the  passage  of  the  ordinance  the  road  was  built  on  a 
grade  and  curve  which  render  it  impracticable  to  comply 
with  the  ordinance.®     And  the  company  is  liable  for  in- 
jury done  when  the  speed  has  been  exceeded,  though  at 
the  instant  of  collision  the  speed  is  within  the  prescribed 


'C'ostellov.  R,  R.  Co.,  65  Barb.  92. 

'Kay  r.  R.  R.  Co.,  65  Pa.  St.  269; 
3  Am.  Rep.  628. 

'  Philadelpliia  etc.  R.  R.  Co.  v. 
Spearea,  47  Pa.  St.  300;  86  Am.  Dec. 
1 545. 

'  Louisrilleetc.  R.  R.-Co.  v.  Melton, 
1 2  Lea,  262. 


*  Chicago  etc.  R.  R.  Co.  i\  Becker, 
84  111.  483;  St.  Louis  etc.  R.  R.  Co.  v. 
Dunn,  78  111.  197;  Karlo  r.  R.  R.  Co., 
55  Mo.  476;  Massoth  i\  Canal  Co.,  6-4 
N.  Y.  524;  Correll  v.  R.  R.  Co.,  38 
Iowa,  120;  18  Am.  Rep.  22. 

«  Neier  v.  R.  R.  Co.,  12  Mo.  App. 
25. 


g  1183 


NEGLIGENCE. 


limit.'  But  the  prohibited  speed,  if  not  the  eflScicnt  cause 
of  the  injury  complained  of,  will  not  render  the  company 
liable  for  such  injury."  A  statute  requiring  the  checking 
of  trains  at  road  crossings  applies  as  well  to  the  crossings 
of  streets  in  cities."'  So  one  limiting  the  speed  of  railroad 
trains  in  the  city  will  not  be  construed  as  applying  only 
to  those  portions  of  the  city  used  by  the  public.''  An 
ordinance  forbidding  the  running  of  trains  at  a  greater 
speed  Hian  ten  miles  an  hour  within  the  city  limits  does 
not  license  trains  to  run  at  this  rate.  The  trains  must 
still  conform  their  rate  of  speed  to  the  safety  of  the  pub- 
lic.^  Under  a  statute  making  a  railroad  liable  for  dam- 
ages  done  to  person  or  property  by  a  train,  engine,  or  car 
run  through  a  municipality  at  too  great  a  rate  of  speed, 
the  conii)any  may  be  liable  where  the  engine  or  train 
does  not  come  in  contact  with  a  team,  but  frightens  the 
horses  attached  thereto  so  that  they  run  away,  injv  iug 
the  owner  in  his  person  and  property." 

§  1183.    Duty  of  Railroad  to  Give  Warning  — Whis. 
tling  or  Ringing  Bell.  —  Where   by  statute  or  munitipul 

ordinance  the  railroad  is  required  on  approaching  u  cross- 
ing  to  ring  a  bell  or  sound  a  whistle,  the  omission  to  do  so 
is  negligence    rendering   the  company  liable,^  provided 


*  New  Orleans  etc.  R.  R.  Co.  v. 
Toulme,  59  Miss.  284. 

"  Evans  etc.  Brick  Co.  v.  R.  R.  Co., 
17  Mo.  App.  024. 

*  Central  R.  R.  Co.  v.  Russell,  75 
Ga.  810. 

♦Crowley  r.  R.  R.  Co.,  65  Iowa,  G58. 
'•>  Wabash  R.  R.  Co.  v.  Henks,  91  III. 
406. 

*  Chicago  etc.  R.  R.  Co.  v.  People, 
120  111.  6(57;  24  III.  App.  562. 

'  Chicago  etc.  R.  R.  Co.  v.  McKean, 
40  III.  218;  St.  Louis  etc.  R.  R.  Co.  v. 
Terhune,  TjOIII.  151;  99  Am.  Dec.  504; 
Chicago  etc.  R.  R.  Co.  v.  Fears,  53 
111.  115;  Galena  etc.  R.  R.  Co.  v.  Loo- 
mis,  13  III.  548;  66  Am.  Dec.  471; 
Chicago  etc.  R.  R.  Co.  v.  Reid,  24  111. 


144;  Indianapolis  etc.   R.    R.   Co,  t. 
Stahles,  62  111.  313;  Chicago  ot  •.  R 
R.  Co.  V.  Notzki,  66  111.  4.jr>;  I'ooiia 
etc.  R.  R.  Co.  V.  Siltman,  67  111.  72; 
Chicago  etc.  R.  R.  Co.  v.  B.ll,  7)  111, 
102;  Artz  v.    R.    R.    Co.,     'AX   ).,«:. 
153;   Commonwealth    v.    R,    R    IV., 
10   Allen,  189;  Fletcher ??.  R.  P.  i..    ' 
64  Mo.  484;  Georgia  etc.  R.  11  0;      '.r 
Wynn,  42  Ga.  331 ;  Gale  la  .to  K.  .,.  i 
Co.  V.  Dill,  22  111.  264;  Ikltiuicic  .•  c.  ^' 
R.  R.   Co.   V.   State,  29  Md.  'll)^.-  '/ 
Am.    Dec.    528;  O'Mara  v.  R.  I!.  Co., 
.38  N.  Y.  445;  98  Am.    Dec.    ()!;  tin. 
cinnati  etc.  R.  R.   Co,  v.  liutlu,",  luS 
Ind.  31;  Huckshold  r.  R.    R.  Co.,  M 
Mo.   548,  Houston  etc.   R.  R.  Co.  f. 
Wilson,  60  Tex,  142. 


ft! 


INJURIES   BY   RAILROADS. 


§1183 


le  or  train 


the  failure  of  duty  is  the  proximate  cause  of  the  injury/ 
and  they  are  not  able  to  show  that  the  omission  was 
reasouublo  and  prudent."  This  statutory  obligation  im- 
poses a  duty  upon  railroad  companies,  not  only  in 
reference  to  persons  approaching  or  in  the  act  of  passing 
the  crossing,  but  in  reference  to  all  persons  who,  being 
lawfully  at  or  in  the  vicinity  of  the  crossing,  may  be  sub- 
jected to  accident  and  injury  by  the  passing  train;"'  as,  for 
example,  persons  traveling  on  a  parallel  highway  as  well 
as  those  intending  to  cross  the  track.*  But  the  failure  to 
give  signals  elsewhere  than  at  public  places  or  at  public 
crossings  does  not  constitute  negligence  as  to  those  who 
as  trespassers  may  be  crossing  or  using  the  track.^  And 
the  employment  of  statutory  signs  and  signals  will  not 
excuse  the  company  if  its  servants  are  otherwise  negli- 
gent." Other  precautions  may  be  required  in  some  local- 
ities and  under  some  circumstances.'  It  is  negligent  to 
run  trains  so  near  together  at  a  highway  crossing  as   to 


•  Thompson  on  Negligeuce,  420;  Bil- 
beec.  R.  R.  Co.,  18  Com.  B.,  N.  S., 
5S4;  Cosgrove  v.  R.  R.  Co.,  13  Hun, 
329;  Stackus  v.  R.  R.  Co.,  7  Huu, 
559;  Ilnvena  v.  R.  R.  Co.,  41  N.  Y. 
290;  Fletcher  v.  R.  R.  Co.,  64  Mo. 
484;  Illinois  etc.  R.  R.  Co.  v.  Benton, 
69  111.  174;  Linfield  v.  R.  R.  Co.,  10 
Cush.  5G-2;  57  Am.  Dec.  124;  Chicago 
etc,  R.  K.  Co.  V.  Notzki,  06  III.  455; 
Peoria  etc.  R.  R.  Co.  v.  Siltman,  67 
111.  72;  Cook  V.  R.  R.  Co.,  5  Lans. 
401;  Commonwealth  v.  R.  R.  Co., 
120  Mass.  372;  Chicago  etc.  R.  R. 
Co.  V.  Van  Patten,  74  111.  91 ;  Cor- 
dell  v.  R.  R.  Co.,  70  N.  Y.  119;  26 
Am,  Rep.  550;  Wilcox  v.  R.  R.  Co., 
|»5  soy  V.  3.58;  100  Am.  Dec.  440;  Nich- 
'  "li  0.  R.  R.  Co.,  41  N.  Y.  525; 
..-r  V  \i.  R.  Co.,  41  N.  Y.  502; 
:  ;icou  V.  R.  R.  Co.,  45  N.  Y.  660; 
(ViliTau  V.  R.  R,  Co.,  59  N.  Y.  651; 
J'lr'ier  i'.  R.  R.  Co.,  86  N.  0.  224. 
But  see  Reeved  i-.  R.  R.  Co.,  30  Pa.  St. 
454;  72  Am.  Dec.  713;  Pennsylvania 
R.  R.  Co.  V.  Ogier,  35  Pa.  St.  60,  71 ;  78 
Am.  Dec.  322;  Madison  etc.  R.  R.  Co. 
r.  Tafie,  37  lud.  361,  376;  Com- 
moawealth  v.  R.  R.  Co.,   10  Allen, 


189;  Ernst  v.  R.  R.  Co.,  39  N.  Y.  61, 
67;  100  Am.  Dec.  405;  St.  Louis  etc. 
R.  R.  Co.  V.  D^nn,  78  III.  197;  Ken- 
nayde  v.  R.  R.  Co.,  45  Mo.  255;  Cor- 
rell  V.  R.  R.  Co.,  38  Iowa,  120;  18 
Am.  Rep.  22;  Philadelphia  etc.  R.  R. 
Co.  V.  Stebbin,  62  Md.  504;  Missouri 
Pacific  R.  R.  Co.  v.  Pierce,  33  Kan. 
61. 

MVakefield  v.  R.  R.  Co.,  37  Vt. 
330;  86  Am.  Dec.  711, 

»  Wakefield  v.  R.  R.  Co.,  37  Vt. 
330;  86  Am.  Dec.  711. 

*  Ransom  v.  R.  R.  Co.,  62  Wis. 
178;  51  Am.  Rep.  718.  Contra,  East 
Tennessee  R.  R.  Co.  v.  Feathers,  10 
Lea,  103. 

"  Shackleford's  Adm'r  v.  R.  R.  Co., 
84  Ky.  43;  4  Am.  St.  Rep.  189. 

«  Bradley  v.  R.  R.  Co.,  2  Cush.  539; 
Linfield  v.  R.  R.  Co.,  10  Cush.  562; 
57  Am.  Dec.  124;  Zimmerc.  R.  R.  Co., 
7  Hun,  552;  Cordell  v.  R.  R.  Co.,  70 
N.  Y.  119;  26  Am.  Rep.  550;  Weber  w. 
R.  R.  Co.,  58  N.  Y.  451;  67  N.  Y.  587; 
Indiana  etc.  R.  R.  Co.  v.  Stables,  62 
III.  313;  Texas  etc.  R.  R.  Co.  v.  Lowry, 
61  Tex.  149. 

'  Dyer  v.  R.  R.  Co.,  71  N,  Y.  228. 


§1183 


NEGLIGENCE. 


2078  ■  2079 


make  the  statutory  signals  unavailing  to  warn  travelers 
on  the  highway.*  Statutes  requiring  signals  to  be  given 
are  for  the  benefit  of  travelers  and  strangers,  and  not  for 
that  of  employees  of  the  company.^  So,  in  the  absonoo 
of  a  statute,  failure  to  whistle  or  give  other  signals  at 
crossings  is  negligence.'  In  this  case  the  obligation  to 
give  signals  or  alarms  of  approaching  trains  depends 
upon  circumstances.  Where  there  is  no  reasonable  ap- 
prehension  of  danger,  no  such  notice  is  required.  But  if 
danger  to  persons  or  property  may  be  reasonably  appre- 
hended  from  a  failure  to  give  notice  of  an  approaching 
train,  it  is  the  duty  of  the  company  to  give  such  notice, 
and  its  failure  to  do  so  is  negligence.* 

Illustrations.  —  At  a  grade  crossing  where  there  where  sev- 
eral tracks,  and  much  switching  was  done  in  making  up  trains 
and  distributing  cars,  no  switchman  was  stationed  until  seven 
o'clock  in  the  morning,  although  much  of  this  work  was  done 
earlier  than  that.     Plaintiff  was  driving,  and  upon  reaching! 
the  crossing,  he  nearly  but  not  quite  stopped,  and  looked  and 
listened    for    trains.     His    view    of   the    farthest    track  was 
obstructed  by  cars  standing  on  a  nearer   track,  but  he  did  not  j 
get  out  of  his  carriage.     Proceeding  to  cross,  a  train  coming 
upon  the  farthest  track  struck  him.     There  was  evidence  that  | 
the  train  was  running  at  unlawful  speed,  and  that  no  signal 
was  given.     Held,  that  the  company  was  liable:  Kelly  v.  U.  R. 
Co.,  21)  Minn.  1.     A  railroad  train  struck  a  person  in  a  city  I 
street.     Owing  to  the  position  of  another  train  the  approaching 
train  could  not  be  seen.     No  bell  was  sounded,  as  required  by 
the  city  ordinance.     Held,  that  negligence  was  shown:  Cim-\ 
miiuj  v.  R.  R.  Co.,  38  Hun,  362.     At  a  crossing  a  woman  vas 
driving  a  steady  horse  which  she  was  accustomed  to  drive;  a  | 
train  approached  without  complying  with  the  statute  requir- 
ing a  bell  or  whistle  to  be  sounded  at  least  eighty  rods  froinj 
the  crossing;  although  cautiously  looking  she  did  not  seethe 
train,  owing  to  obstructions,  until  she  was  within  three  rodsufj 
the  crossing,  when  she  backed  three  rods,  and  the  engine  whis- 

*  Chicago  etc.  II.   R.  Co.  v.  Boggs,     Dec.  237;  Wabash  etc.   R.  R.  Co, 


101  liul.  52'J;  51  Am.  Rep.  761. 

^  Evans  v.  R.  R.  Co.,  «2  Mo.  49. 

^  Iinliaiiii  etc.  R.  R.  Co.  v.  Stout, 
53  Ind.  143;  Pennsylvania  R.  R.  Co. 
V.  Krick,  47  Ind.  3G9;  Chicago  etc. 
R.  R.  Co.  V.  Still,  19  III.  499;  71  Am. 


Wallace,    110  111.    114;  Lake  tt^  U, 
R.  Co.  V.  Zollinger,  107111. 1'Jl);  Louds| 
V.  R.  R.  Co.,  31  Minn.  520. 

*  Pennsylvania  R.    R.    Co.   v.  liari 
nett,   59  Pa.   St.   259;  98  Am.  Uec. 
346. 


2078  ■  2079 


INJURIES  BY  RAILROADS.       §§  1184,  1185 


tling  at  the  crossing  caused  the  horse  to  turn  around  and  throw 
lior  out.  Held,  that  the  railroad  was  liable:  Voak  v.  R.  li.  Co., 
75  N.  Y.  320.  Plaintiff 's  horse,  driven  by  his  servant  with  a 
load  to  be  delivered  at  the  railroad  station,  was  frightened  by 
the  noise  of  a  construction  train,  backed,  and  broke  its  neck. 
//(/(/,  that  the  company  was  not  liable,  although  the  station 
ag'.'nt  oi'dered  the  driver  to  backup  to  the  station  platform,  the 
agent  not  knowing  that  the  horse  was  timid,  nor  although  the 
train,  which  had  been  backing  up  and  down  between  blow-posts, 
did  not  sound  a  whistle:  Morgan  v.  R.  R.  Co.,  77  Ga.  788.  A 
city  ordinance  required  that  locomotives  passing  through  the 
city  should  have  a  lookout  in  a  certain  position.  Owing  to 
changes  in  the  plan  of  engines  this  became  impracticable. 
Held,  that  a  railroad  was  not  chargeable  with  negligence  in  not 
complying  with  the  ordinance:  Baltimore  etc.  R.  R.  Go.  v.  Mali, 
66  Md.  53. 

§  1184.  Evidence  as  to  Ghing  of  Signals.  —  Where 
the  evidence  is  conflicting  as  to  whether  the  bell  was  rung 
or  the  whistle  sounded  at  a  crossing,  and  there  is  affirma- 
tive testimony  that  this  duty  was  performed,  and  negative 
testimony  by  other  witnesses  that  they  did  not  hear  it, 
the  affirmative  evidence  of  the  fact  should  overcome  the 
negative.^  That  the  plaintiff  did  not  tear  the  signal  is 
no  evidence  that  it  was  not  given.^ 

§  1185.  Gates  at  Crossings  —  Flag-men.  —  Where  by 
statutes  gates  are  required  to  be  erected  at  railroad  cross- 
ing, the  failure  to  do  so  is  negligence,^  and  the  company 
will  be  liable,  provided  the  omission  was  the  proximate 
cause  of  the  injury.*  It  is  generally  held  that  it  is  not 
negligence  on  the  part  of  a  railroad  to  fail  to  maintain  a 
watchman  or  flag-man  at  a  crossing  to  warn  travelers.* 
In  Missouri  it  is  said  that  the  railroad  is  not  bound  to  this 
duty  unless  it  is  the  custom  of  railroads  to  do  so  at  simi- 


'  Chapman  v,  R.  R.  Co.,  14  Hun, 
4S4;  Sutherland  v.  R.  R.  Co.,  9  Jones 
&  S.  17;   McGrath  v.  R.  R.  Co.,  63 


K.  Y.  5'22;  Culhane  v.  R.  R.  Co.,  60    Ex.  157. 


^  Ellis  V.  R.  R.  Co.,  L.  R.  9  Com.  P. 
651. 

••♦Williams  v.  R.  R.  Co.,  L.   R.  9 


N.  Y.  1.33;  67  Barb.  562;  Telfer  v. 
R,R.  Co.,  30  N.  J.  L.  188;  Chicago 
etc.  R.  R.  Co.  V.  Still,  19  111.  499;  71 
Am.  Dec.  236. 


*  Penn.  Co.  v.  Hensil,  70  Ind.  509; 
36  Am.  Rpp.  188. 

*  Kissenger  v.  R.  R.  Co.,  56  N.  Y. 
63a;  Sellara  v.  R.  R.  Co.,  94  N.  C.  654. 


§1185 


NEGLIOENCE. 


2O80 


lar  crossings.*    In  Iowa  and  Wisconsin  the  omission  may 
be  considered  by  the  jury  on  the  question  of  negligence,- 
In  New  York  it  is  held  error  to  leave  the  question  whether 
or  not  the  omission  to  have  a  flag-man  was  negligent  to 
the  jury.^     So  the  withdrawal  or  absence  of  a  flag-manor 
watchraan  from  a  highway  crossing  where  he  is  usnally 
kept  is  negligence.*     "Where  a  flag-man    is  employcfl  at 
a  crossing  to  warn  travelers,  his  neglect  to  do  so  will  ren. 
der  the  company  liable;*  and  one  injured  by  obeyin:^  the 
signals  of  the  watchman  may  recover  damages."    IIo  is 
bound  to  indicate  to  persons  when  it  is  safe  for  thoni  to 
pass  as  well  as  when  it  is  necessary  or  prudent  for  them 
to  refrain  from  passing.''    As  to  one  who,  without  right, 
is  walking  on  a  railroad  right  of  way,  the  company  owes 
no  duty  to  provide  a  flag-man  at  a  street  crossing;  ®  and 
the  flag-man  himself  cannot  recover  for  an  injury  result. 
ing  from  his  failure  to  see  approaching  cars  which  it  was 
his  duty  to  observe."    But  it  cannot  be  charged  as  a  mat- 
ter of  law  that  one  about  to  tross  a  railroad  track  was 
free  from  negligence  because  the  flag-man  beckoned  Lira 
on.^"    If  he  sees  the  danger,  even  the  absence  of  the  flag- 
man will  not  excuse  his  running  into  it."    If  the  traveler 
refuses  to  heed  the  signals,  the  railroad,  unless  grossly 
negligent,  will  not  be  liable;*''  but  one  need  not  take  no- 
tice of  unintelligible  signals."     Under  a  statute  making  a  , 


»  Welsch  V.  R.  R.  Co.,  72  Mo.  451; 
37  Am.  Rep.  440;  Ernst  v.  R.  R.  Co., 
3i)  N.  Y.  Gl;  100  Am.  Dec.  405. 

'  Hart  V.  R.  R.  Co.,  66  Iowa,  166; 
41  Am.  Rep.  93:  Hove  v.  R.  R.  Co., 
67  Wis.  1. 

»  Houghkirk  V.  R.  R.  Co.,  92  N.  Y. 
219;  44  Am.  Rep.  370. 

*  Burns  v.  North  Chicago  Rolling 
Mill  Co.,  65  Wis.  312;  Pittsburg  etc. 
R.  R.  Co,  V.  Yundt,  78  Ind.  373;  41 
Am.  Rep.  580;  Warner  v.  R.  R.  Co., 
45  Barb.  299. 

*  Kissenger  v.  R.  R.  Co.,  56  N.  Y. 
638;  Delaware  etc.  R.  R.  Co.  t.  Tof- 
fey,  38  N.  J.  L.  525;  Dolanv.  Delaware 
etc.  Canal  Co.,  71  N.  Y.  285;  Central 
Trust  Co.  V.  R.  R,  Co.,  27  Fed.  Rep.  15». 


^  Sweeney  v.  R.  R.  Co. ,  10  Alien, 
368;  87  Am.  Dec.  645. 

'  Sweeny  v.  R.  R.  Co.,  10  Allen, 
368;  87  Am.  Dec.  645. 

8  Chicago  etc.  R.  R.  Co.  v.  Eiiiinger, 
114  111.  79. 

»  Clark  V.  R.  R.  Co.,  128  Mass.  1, 

■"  Chicago  etc.  R.  R.  Co.  v.  Siiring, 
13  111.  App.  174. 

"  Pakalinsky  v.  R.  R.  Co.,  82  X.  Y. 
424;  McGrath  v.  R.  R.  Co.,  y<J  X.  Y, 
468;  17  Am.  Rep.  359.  | 

"  Harlan  v.  R.  R.  Co.,  C4  Mo.  480; 

65  Mo.  22;    Wilds  v.  R.  R.  to.,  29 
N.  Y.  315. 

"  Chicago  etc  R.  R.  Ca  v.  Notzki, 

66  111.  455. 


20S1 


INJURIES  BY  RAILROADS. 


§  1186 


railroad  corporation  liable  for  all  damages  sustained  by 
reason  of  neglect  to  put  up  sign-boards  at  erossingni,  the 
liiiliiio  to  maintain  a  sign-board  is  conclusive  evidence 
of  negligence;'  but  the  failure  to  erect  a  sign-board  at  a 
ciossing,  as  required  by  law,  does  not  render  the  company 
responsible  for  an  accident  happening  to  one  who  saw 
tilt'  track  and  attempted  to  cross  it.**  The  juiy  are  to  de- 
cide whothcr  the  omission  of  a  sign  over  a  railroad  cross- 
ing constitutes  negligence,  though  there  is  no  dtatuto  or 
ordinance  requiring  such  sign,  and  the  injured  party  was 
tauiiliar  with  the  crossing.' 

§1186.    Dangerous    Crossings  —  Obstructed  View. — 

Obstructions,  either  natural  or  artificial,  which  obscure 
passing  trains  from  approaching  travelers,  demand  of 
the  employees  of  the  company  the  exercise  of  increased 
vigilance;  and  where  they  are  upon  the  right  of  way  of 
the  company,  or  are  of  its  own  construction,  or  exist  by 
its  permission,  this  is  such  negligence  as  may  render  it 
Hable  for  injuries  occurring  at  a  crossing  thus  obscured.* 
Where,  from  the  peculiarity  of  construction  of  the  cross- 
ing on  account  of  the  conformation  of  the  land,  the  steep- 
I  uess  of  grades,  or  sharpness  of  curves,  the  danger  is  aug- 
mented, this  imposes  the  duty  of  additional  care  on  the 
part  of  the  railroad  and  its  employees.^  In  crossing  a  pub- 
lic road  it  is  the  duty  of  the  railroad  company  to  restore 
the  highway  so  as  not  to  interfere  materially  with  its  usc- 
|fuliicss.''    The  following  have  been  held  to  be  negligence 

'Field  r.  R.  R.  Co.,  14  Fed.  Rep.  Co.  v.  Matthews,   36    N.  J.  L.    531; 

1332.  Mackay  v.  R.  R.  Co.,  35  N.  Y.  75. 

•Iloiisv.  R.  R.  Co.,  47  Mich.  401.  *  Chicago  etc.  R.  R.  Co.  v.   I'ayne, 

'  .Shalicr  ?■,  R.  R.  Co.,  28  Minn.  103.  59  111.  534,  540;  49  111.  499;  Imlian- 

'Diinick  V.  R.  R.  Co.,  80  111.  338;  apolis  etc.  R.  R.  Co.  v.  Stables,  i]'2  111. 

I.\rtz  )•.  R.  R.  Co.,  44  Iowa,  284;  34  313;  Richardson  v.  R.  R.  Co.,  45  N. 

Ikvii,  1:4:  :iS  Iowa,  293;  IngLT^oU  v.  Y.  846,  849;  Illinois  etc.  R.  R.  Co.  v. 

IR.  1!.  Co.,  (i  Tlionip.  &  C.41(i;  Illinois  Benton,  69  111.  174;  Indianapolis  etc. 

|etf.  i;.  ];.  V,K  r.  Bentou,  69 111.  174;  In-  R.  R.  Co.  v.  Stout,  53  Ind.  143;  Rayne 

diinaiioli.s  etc.  R.  R.  Co.  v.  Smith,  78  v.  R.  R.  Co.,  9  Hun,  526;  Reeves  v. 

Ml;.':  Ohio  etc.  R.R.  Co.  n  Clutter,  R.  R.  Co.,   30  Pa.  St.  454;  72  Am. 

^2  i!i.  17:i;  CordcU  r.  R.  R.  Co,,  70  Dec.  713. 

^'.  Y.  Hit;  2()  Am.  Rep.  550;  Craig  v.  *  DufiFy  v.  R.  R.  Co.,  32  Wis.  269; 

Y-VuCo.,  118  Mass.  431;  Penu.  R.  R.  Roberta  r.  R.  R.  Co.,  35  Wis.  679. 

131 


1180 


NEOLIOENCE. 


2082 


20S3 


of  this  character,  viz.:  Permitting  woods  to  grow  on  fh(. 
company's  right  of  way  to  such  u  height  as  to  provcut 
the  traveling  public  from  seeing  approaching  truing;' 
permitting  corn-cribs  to  stand  near  its  track,  1)^'  reason 
of  which  the  view  of  the  crossing  is  cut  off;^  i'iliiij; 
wood,  and  the  erection  of  a  buUding,  so  near  the  truck  us 
to  render  it  impossible  for  one  approaching  on  tho  lii^rh. 
way  to  see  a  coming  train  in  time  to  avoid  a  colli-ion^ 
even  by  the  exercise  of  the  greatest  diligence;^  having 
one  or  more  of  its  cars  standing  in  the  street,  by  whidi 
the  view  of  the  track  in  one  direction  is  obstructed,  so 
that  a  person  crossing  the  track  could  not  see  a  train  ap- 
proaching.* So  where  the  track  of  the  road  was  obscured 
by  timber,  or  by  fog  and  smoke,  even  in  the  absence  of 
a  statute  requiring  audible  signals,  it  was  hold  inoumhont 
upon  the  company  to  sound  the  whistle,  and  the  I'uilure 
to  do  so  was  evidence  of  negligence.® 

Illustrations. — The  track  was  raised  at  a  crossing  ho  as  to 
render  it  difficult  for  loaded  wagons  to  cross.     The  pluiiUiir en- 
deavoring to  cross,  the  wheels  of  his  wagon  sank  po  that  lie 
could  not  pass  over  the  rails,  and  while  thus  detained,  hjsi 
wagon  was  struck  by  a  passing  train,  and  himself  injured. 
Held,  that  the  railroad  was  negligent  in  not  so  construciing  the 
crossing  as  to  render  it  convenient  and  practicable  for  Liadedj 
teams:  Milwaukee  etc.  R.  R.  Co.  v.  Hunter,  12  Wis.  IGO;  7S  Am, 
Dec.  699.     The  company  had  allowed  the  view  of  the  track  to) 
be  obstructed  by  a  house  and  brush  on  its  right  of  way,  andf 
the  train,  being  behind  time,  was  going  at  unusual  speed,  and! 
the  statutory  signals  of  approach  were  not  seasonably  f^ivon.i 
Held,  that  the  company  was  liable,  even  if  the  deceased  uasj 
negligent  in  listening  or  looking:  Chicago  etc.  R.  R.  Co.  v.  Lctl 
87  111.  454. 


'  Indianapolis  etc.  R.  R.  Co.  v.  Smith, 
78  III.  112;  Ohio  etc.  R.  R.  Co.  v. 
Clutter,  82  111.  123;  Chicago  etc.  R. 
R.  Co.  V.  Lee,  87  111.  454. 

■■*  Rockford  etc.  R.  R.  Co.  v.  Hillmer, 
72  111.  2.35. 

■■'  Mackay  v.  R.  R.  Co.,  35  N.  Y.  75. 

*  McGuire  v.  R.  R.  Co.,  2  Daly,  70; 
Thomas  v.  R.  R.  Co.,  19  Blatchf.  533. 


Bat  outer,  where  the  obstruction  n  al 
moving  train,  which  in  ai>  iiKMiiHiderJ 
able  space  of  time  would  li:.vc'  iiasseJ;! 
Ilamm  v.  R.  R.  Co.,  50  N.  Y.  .Siin.  Ctf 
78. 

»  Jamea  v.  R.  R.  Co.,  L.  R  '.H'.  Pj 
G3.5,  note;  Prescott  v.  R.  11.  Co.,  lljf 
Mass.  370,  note;  Elbert  v.  11.  K.  loj 
48  Wis.  606. 


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[  French 
53";  Bnnni 
597;  88  Ami 
R.  (-'o.,_  120l 

II.  li.  (.'o.    ('. 

'■■  R.  K.  Co.| 

'K.  K.  Co. 

lit]  I.  .S(!4. 
•  IJiiiloy  i; 

RoI)iiisi)n  J.,  I 

Roiiiick  ('.  rI 
'IlIiiKii.s  ef 

II!  3!'f);  Cl) 
,  C'Mwy,  .-,8  If 
I  (■"■,  ti7  N. 
li.  Co.,  ,c 
|C...,-,ix.  Y., 
I  '0  Cu.sli.  5(J2l 

'Oi'imiiorl 
IJO;  4  Am. 


20S3 


INJURIES    BY    RAILnoADS.         g§  1187,  1188 


§  1187.    Running  or  Flying  Switch  —  Backing  Cars.— 


Makinj;  a  "  rumiinj; "  or  u  "  flying  "  switch 


1.  0.,  por- 


iiiit'iii';  cars  to  run  over  a  crossing  iuimediati'ly  nWov  Iho 
tniiu  from  which  thoy  Inivo  been  dotachod — is  nogligonco 
ill  the  raih'oad.'  When  the  train  is  backing  or  curs  arc 
being  pushed  by  a  locomotive,  extra  precaution  must  bo 
used  to  avoid  injuries  at  crossings;-  the  ringing  the  l)ell 
or  sounding  the  whistle  on  the  locomotive  is  not  sufR- 
cinit.''  One  about  to  cross  a  railroad  track  on  a  highway 
is  not  negligent  in  not  anticipating  that  a  flying  switch. 
is  about  to  be  made.* 

§  1188.     Contributory   Negligence  —  In    General.  — 

Though  the  railroad  company  has  been  guilty  of  negli- 
pcnco,  the  traveler  cannot  recover  damages  if  he  has  been 
puilty  of  contributory  negligence.*^  Under  the  rule  of 
comparative  negligence  prevailing  in  Illinois  and  Georgia, 
slijiht  negligence  upon  the  part  of  the  traveler  will  not 
exonerate  the  company  from  liability  for  a  willful  or  reck- 
less disregard  of  the  safety  of  such  traveler."  But  though  a 
person  comes  on  the  track  negligently,  yet  if  the  servants 
of  the  company  after  they  see  his  danger  can  avoid  in- 
juring him,  they  must  do  so  or  the  comi)uny  will  be  liable.' 
In  the  absence  of  evidence  to  the  contrary,  a  person  who 


'  French  v.  R.  R.  Co.,  110  Mass. 
5,'!7;  Bnnvu  i-.  R.  R.  Co.,  3l>  N.  Y. 
5'J";  8S  Am.  Dec.  353;  Hinckley  v,  R. 
R.  Co.,  120  Mass.  257;  Chicago  etc. 
K.  R.  Co.  (-.  Garvey,  58  111.  S3;  Butler 
r  R.  U.  Co.,  28  Wis.  487;  O'Connor 
1  R.  K.  Co.,  94  Mo.  150;  4  Am.  St. 
Hep.  .Si  14. 

•Bailoy  V.  R.  R.  Co.,  107  Mass.  490; 
Rolniis,.!!  r.  R.  R.  <.'o.,  48  Cal.  409; 
Romick  r.  R.  R.  Co.,  02  Iowa,  107. 

■  Illinois  etc.  R.  R.  Co.  r.  FIbert,  74 
111.  3110;  Chicago  etc.  R.  R.  Co.  v. 
friirvi'V,  .")8  111.  85;  McCroveru  v.  R.  R. 
((!.,  07  N.  Y.  417;  Ma^innis  r.  R. 
R.  Co.,  :yl  N.  Y.  215;  Eaton  r.  R.  R. 
I  C ...  -)!  X.  Y.  544;  Liniield  r.  R.  R.  Co., 
10  Cush.  502;  57  Am.  Dec.  124. 

MJ'i'oimor  v.  R.  R.  Co.,  94  Mo. 
I IJO;  4  Am.  St.  Rep.  301. 


*  Toledo  etc,  R.  R.  Co.  ;•.  Riley,  47 
111.  514;  Eaton  v.  R.  R.  Co.,  51  N.  Y. 
544;  Stoves  /'.  R.  R.  Co.,  18  N.  Y. 
422;  H  ivens  i:  R.  R.  Co.,  41 N.  Y.  290; 
Spencer  r.  R.  II.  Co.,  5  Barb.  337; 
Harlan  r.  11.  R.  Co.,  04  Mo.  4S0;  05 
M...  22;  Hinckley  v.  R.  11.  Co.,  120 
>'ass.  257;  llothe  v.  II.  11.  Co.,  21  Wis. 
2.")0;  (laleiia  etc.  R.  R.  Co.  r.  Dill,  22 
III.  204.  When  a  horse-car  crosses  the 
track  of  a  steam-railroad  the  driver  ia 
bound  to  exorcise  the  highest  degree 
of  care  and  prudence,  the  utmost  skill 
and  forusiyht:  Coddii.gton  i-.  R.  R, 
Co.,  102  N.  Y.  00. 

«  Augusta  etc.  R.  R.  Co.  v.  McEl- 
murry,  24  Ga.  75;  Chicago  etc.  11.  R. 
Co.  /•.  Triplett,  .38  III.  482;  Macon  etc. 
R,  R.  Co.  V.  Davis,  27  Iowa,  113. 

'  State  V.  R.  R.  Co.,  52  N.  H.  528. 


mmmmm 


§118^ 


NKGLIGENCE. 


20S4 


has  been  killed  by  a  train  at  a  railway  crossing  will  bo 
presumed  to  have  observed  the  precaution  the  law  re- 
quires,  and  the  burden  of  proof  is  on  the  railway  com- 
pany to  show  that  he  has  not.* 

§  1189.  Duty  to  Look  and  Listen.  —  It  is  the  duty  of  a 
traveler  on  approaching  a  track  to  look  both  ways  and 
listen  for  trains  before  he  crosses  it,^  and  where  a  person 
knowing  that  ho  is  approaching  a  crossing,  and  with  an 
unob:itructed  view  of  the  truck  in  both  directions,  and 
notliing  to  prevent  his  hearing  a  coming  train,  advances 
to  the  point  of  intersection  without  either  looking  or 
listening,  his  reckless  conduct  will  constitute  negligence 
per  se,  so  as  to  preclude  a  recovery  for  the  injuries  in- 
flicted upon  him.'*    The  rule  of  law  that  a  railroad  track 


'  rcnnsjlvania  R.  R.  Co.  r.  Weber, 
7G  Pii.  St.  157;  18  Am.  Rep.  407.  Bui; 
see  Cliiisc  r.  R.  R.  Co.,  77  Me.  02;  52 
Am.  Kep.  744. 

-  Wichita  etc.  R.  R.  Co.  v.  Davis,  37 
Kan.  743;  1  Am.  St.  J'.up.  27o;  Brown 
V.  R.  R.  Co.,  22  Minn.  1(3.');  Ernst  v. 
R.  R.  Co.,  39  X.  Y.  01 ;  100  Am.  Dec. 
405;  Stackus  v.  R.  R.  Co.,  7  Hun, 
559;  Chicago  etc.  R.  R.  Co.  v.  Kusel, 
(J3  111.  180;  Wilcox  r.  R.  R.  Co.,  39 
N.  Y.  358;  100  Am.  Dec.  440;  Chicago 
etc.  R.  R.  Co.  i:  McK.;an,  40  III.  218; 
Chioairoetc.  R.  R.  Co.  /■.  Still,  19  111. 
499;  71  Am.  Dec.  230;  Chicago  etc.  R. 
R.  Co.  r.  Houston,  95  U.  S.  097;  St. 
Louis  etc.  R.  R.  Co.  r.  Manly,  58  111. 
300;  Linfiehl  r.  11.  R.  Co.,  10  Cash. 
502;  57  Am.  Dec.  124;  Chicago  etc. 
R.  R.  Co.  v.  Hatch,  79  111.  137;  De- 
troit etc.  R.  R.  (.'o.  V.  Van  Steinberg, 
17" Mich.  99;  North  Penn.  R.  R.  Co. 
r.  Heileman,  49  Pa.  St.  00;  88  Am 
Dec.  482;  Penn.  R.  R.  Co.  r.  Weber, 
70  Pa.  St.  157;  18  Am.  Rep.  407; 
Penn.  R.  R.  Co.  v.  Bealc,  73  I'a.  St. 
504;  13  Am.  Rep.  753;  Sciioiield  v.  R. 
R.  Co.,  114U.  S.  015;  Wabash  etc. 
R.  R.  Co.  V.  Central  Trust  Co.,  23 
Fed.  Rep.  022;  Lesau  v.  R.  R.  Co.,  77 
Me.  85;  State  v.  R.  R.  Co.,  77  Me. 
538;  Thompson  c.  R.  R.  Co.,  33  Hun, 
10;  Hi.xson  V.  R.  R.  Co.,  80  Mo.  335; 
Uoiuu  Pacific  E.  R,  Co.  v.  Adams,  33 


Kan.  427;  Pence  v.  R.  R.  Co.,  03  Iowa, 
740;  Clark  r.  R.  R.  Co.,  35  Kan.  :):,i}; 
Chicago  etc.  R.  R.  Co.  v.  Hedges,  105 
lud.  398;  Rhoailes  v.  R.  R.  Cc,  J8 
Mich.  203;  Taylor ^^  R.  R.  Co.,  80  .Mo. 
457;  Shaber  i\  R.  R.  Co.,  28  Mian.  lOI). 
Hionzales  v.  R.  R.  Co.,  38N.  Y. 
440;  98  Am.  Dec.  58;  Chicago  etc.  11. 
R.  Co.  V.  Damrell,  81  111.  450;  R,nk. 
ford  etc.  R.  R.  Co.  v.  Byam,  80  111. 
528;  Bellefoutaine  etc.  R.  R.  C...  ,•, 
Hunter.  33  Ind.  335;  5  Am.  Hep.  .'Ul; 
Allyu  V.  R.  R.  Co.,  105  Mass.  77; 
Benton  r.  R.  R.  Co.,  42  Iowa,  lli'J; 
New  Orleans  etc.  R.  R.  Co.  v.  .Miuh- 
eil,  52  Miss.  80S;  (^orton  ;•.  K.  R. 
Co.,  45  N.  Y.  OuO;  Reynolds  r.  U.  R. 
Co.,  58  N.  Y.  248;  Cleveland  etc  R. 
R.  Co.  V.  Elliott,  2S  Ohio  St.  '.'M; 
Lake  Shore  etc.  R.  R.  Co.  v.  Swiultn'- 
laud,  2  Bradw.  ;;07;  Fletcher  /•.  i;.  R. 
Co.,  04  Mo.  484;  Loduke  ;•.  II  R. 
Co.,  4  Mo.  App.  485;  LiI.a'  Shme 
etc.  R.  R.  Co.  r.  Miller,  25  Mich.  -.'74; 
Brooks  ('.  R.  R.  Co.,  1  Abb.  .\[ii). 
211;  Toledo  etc.  R.  R.  Co.  v.  Sliudv- 
nian,  50  Ind.  42;  Brendell  r.  It.  R. 
Co.,  27  Barb.  534;  Payi;e  r.  R.  R.  Co,, 
39  Iowa,  523;  44  Iowa,  230;  (  h  \  ilaiul 
etc.  R.  R.  Co.  V.  Crawford,  24  ()\m 
St.  031;  15  Am,  Rep.  033;  Ernst  r. 
R.  R.  Co.,  39  N.  Y.  01;  100  Am.  Dec. 
405;  Wilcox  v.  R.  R.  Co.,39\.Y, 
358j   100  Alii    Dec.  440;  SchoUcklr. 


20S5 


INJURIES   BY    RAILROADS. 


§  1180 


is  ill  itself  a  warning  of  clanger  applies  as  well  to  a  side- 
track as  to  a  main  line.^  But  the  fact  that  one  in  at- 
tempting to  cross  a  railroad  does  not  at  the  instant  of 
stepping  on  it  look  to  ascertain  if  a  train  is  approaching 
is  not  conclusive  evidence  of  a  want  of  duo  care  on  his 
jniit;  but  his  omission  to  do  so  is  for  thejury.^ 

Some  cases  hold  that  he  should  come  to  a  halt;'  and 
where  the  peculiarities  of  the  situation  require  such  pre- 


K.  ];.  Co.,  2  McCrary,  2G8;  Wabash 
etc.  K.  ii-  Co.  V.  Hicks,  13  111.  App. 
407;  .Seliacfert  r.  R.  R.  Co.,  (32  Iowa, 
(j'.'4;  Jiitoruatioual  etc.  R.  R.  Co.  i\ 
ilriives,  59  Tex.  330;  Chicago  etc. 
K.  It.  C).  r.  Houston,  S);")  U.  S.  G97; 
.'■Jdiitli.  etc.  R.  R.  Co.  V.  Thompson,  02 
Ala.  41)1;  Powell  v.  R.  R.  Co.,  7G  Mo. 
80;  AUyn  r.  R.  R.  Co.,  105  Mass.  77; 
I.iiliiuia  etc.  R,  R.  Co.  v.  Hammock, 
118  liitl.  1;  Glascock  v.  R.  R.  Co., 
;;{  t'll.  137;  Atchison  etj.  R.  R.  Co. 
/'.  Tiiwusend,  39  Kan.  115;  Damrill 
r.  U.  R.  Co.,  i:  Mo.  App.  *:02. 
hi  North  Pcnn.  R.  R.  Co.  v.  Heile- 
iiiin,  4!)  Pa.  St.  GO,  88  Am.  Dec. 
4bJ,  tlm  court  say:  "  The  eviilence 
jiistitleil  the  defendants  in  proposing 
their  points  to  the  court,  the  first  of 
wliicli  was  as  follows:  ''lliat  it  is  the 
duty  <if  a  traveler  approaching  a  rail- 
r(«il  oros.sing  to  look  along  the  line  of 
tiio  railroad  and  see  if  any  train  is 
coiuiiii.';  and  if  the  jury  Ijulieve  the 
plaiutitf  failed  to  take  such  a  precau- 
tion, ho  was  guilty  of  ucgHi^euce,  and 
Ciuiaot  recover  in  tliis  suit.'  This 
jxiiiit  the  court  answered  by  saying: 
'This  is  one  of  the  reasonable  precau- 
tioua  a  man  is  bound  to  use,  and  its 
ahseiR'c  is  evidence  of  neglect.'  This 
wild  not  a  full  answer  to  the  point. 
Tim  court  conceded  that  looking  out 
ii'V  till!  approach  of  a  train  is  a  duty, 
when  a  traveler  is  about  to  cross  a 
niilidailtrack;  but  instead  of  charging 
tile  jury  that  failure  to  look  out  is 
ncu'hm  rce,  instructed  tlicm  that  it 
was  evidence  of  negligence.  This  was 
nut  nil  the  defendants  asked,  nor  all 
tiicy  were  entitled  to  have.  Absence 
of  such  a  precaution  was  more  than 
eviJenco  of  negligence.  It  was  negli- 
gence itself,  and  it  was  such  as  may 
iiave  contributed  directly  to  the  injury; 


for  the  uncontradicted  evidence  was, 
that  the  plaintiff  drove  his  horse  and 
wagon  slowly  upon  the  track  in  front 
of  the  passing  locomotive.  If  he  did 
this  without  looking  along  the  track, 
he  acted  without  any  precaution 
against  a  known  danger,  and  he  was 
not  entitled  to  recover  if  his  want  of 
precaution  contributed  to  his  hurt. 
That  what  constitutes  negligence  in  a 
particular  case  is  generally  a  question 
for  the  jury,  and  not  for  the  court, 
is  undoul)tedly  true,  because  negli- 
gence is  want  of  ordinary  care.  To 
determine  whether  there  has  been 
any  involves,  therefore,  two  inquiries: 

1.  What  would  have  been  onlinary 
care  under  the   circumstances;     and, 

2.  Whether  the  conduct  of  the 
person  changed  with  negligence  came 
up  to  that  standard.  In  most  cases, 
the  standard  is  variable,  and  it  must 
be  found  by  a  jury.  But  wlien 
the  standard  is  fixed,  where  the  meas- 
ure of  duty  is  defined  by  the  law, 
entire  omission  to  perform  it  is  negli- 
gence. In  such  a  ease,  the  jury  have 
but  one  of  these  inquiries  to  nuikc. 
They  have  only  to  find  whelJ^ier  ho 
upon  whom  the  duty  rests  has  per- 
formed it.  If  ho  has  not,  the  law 
fixes  the  character  of  his  failure,  and 
pronounces  it  negligence. " 

■  Mynniug  v.  R.  R.  Co.,  59  Mich. 
257. 

•^Plummer  v.  R.  R.  Co.,  73  Me. 
591 

»  Wilds  V.  R.  R.  Co.,  29  N.  Y.  315, 
328;  Pennsylvania  Canal  Co.  r.  Be.it- 
ley,  GG  Pa.  St.  30;  Kelly  v.  R.  R.  Co., 
88  Mo.  534;  Seefeld  r.  R.  R.  Co.,  70 
Wis.  216;  5  Am.  St.  Rep.  1G8;  confrn, 
Leavenworth  etc.  R.  R.  Co.  ik  Rice, 
10  Kan.  426,  438;  Bunting  v.  R.  R. 
Co.,  14  Nov.  351. 


11S9 


NEGLIGENCE. 


2086 


cautions,  get  out  of  his  wagon  and  approach,  and  look 
along  the  track  in  both  directions.^  But  where  these  pre. 
cautions  would  be  unavailable,  as  where  the  time  neces- 
sarily consumed  in  going  from  the  wagon  to  the  crossing, 
returning  to  the  wagon,  and  then  driving  to  the  track, 
would  have  enabled  the  train,  at  the  rate  of  speed  it  was 
running,  to  have  reached  the  crossing  in  about  the  same 
time,  from  a  point  at  which  it  was  not  visible  from  the 
traveler's  point  of  observation,  he  is  under  no  obligation 
to  do  so;^  nor  where  the  want  of  care  of  the  managers  of 
the  train  would  have  rendered  such  a  precaution  of  no 
avail.^  The  degree  of  diligence  required  of  the  tnxvt  kr 
is  such  as  a  man  of  ordinary  prudence  would  exorcise 
under  similar  circumstances.*  One  who  fails  to  hoar  a 
train  because  rattling  bottles  in  his  wagon,  which  he  does 
not  stop  before  crossing  the  track,  prevent  his  hearing, 
has  only  himself  to  blame  if  he  is  struck  by  the  train.' 
So  one  who  walks  in  front  of  moving  cars  with  an  um- 
brella over  his  head  is  guilty  of  negligence.®  It  does  not 
excuse  the  traveler  from  looking  that  he  supposed  the 
train  had  passed  at  the  usual  hour,  it  being  in  fact  behind 
time;"  or  that  the  railroad  omitted  to  give  warning  sig- 
nals, or  that  the  railroad  has  just  made  a  flying  switch;* 
or  that  he  had  to  obstruct  his  sight  to  prevent  his  hat 
from  being  blown  away,  and  that  he  relied  upon  his  hear- 
ing;* or  tliat  he  liad  foi*gotten  that  he  was  in  the  vicinity 


•  Pcniisylvnnia  R.  R.  Co.  v.  Beale, 
73  Pa.  8t.  r)04;  13  Am.  Rep.  753. 

•^  DufiFy  V.  R.  R.  Co.,  32  Wis.  209. 

^  I'euiisylvania  R.  R.  Co.  v.  Acker- 
man,  74  Vd.  St.  2G5;  McGuire  n  R. 
R.  Co.,  2  Daly,  761. 

*  Itidiauapolis  etc.  R.  R.  Co.  v. 
Stout,  53  Iiul.  143;  Kennedy  v.  R.  R. 
Co.,  3(i  Mo.  351;  Bernhard  v.  R.  R. 
Co.,  1  Abb.  App.  131;  .32  Barb. 
105;  19  How.  Pr.  199;  18  How.  Pr. 
427;  McOrath  v.  Hudson  etc.  R.  R. 
Co.,  .32  Barb.  144;  19  How.  Pr.  211; 
Central  R.  R.  Co.  v.  Moore,  24  N.  J.  L. 


824;  Continental  Improvmemt  Co.  v. 
Stead,  95  U.  S.  101;  Cleveland  etc. 
R.  R.  Co.  V.  Crawford,  24  Ohio  .St.  Ciit; 
15  Am.  Rep.  6.33. 

»  Merkle  v.  R.  R.  Co.,  49  N.  .1.  L, 
473. 

6  Yancey  v.  R.  R.  Co.,  93  Mo.  4;!3. 

^  Toledo  etc.  R.  R.  Co.  v,  Jones,  16 
111.  311. 

»  Ormsbee  v.  R.  R.  Co.,  14  U.  I, 
102;  51  Am.  Rep.  .354;  Ernst  r.  It.  K. 
Co.,  .35  N.  Y.  7;  90  Am.  Dec.  7(il. 

»  Butterfield  v.  R.  R.  Co.,  10  Allen, 
532;  87  Am.  Dec.  679. 


20S7 


INJURIES   BY   RAILROADS, 


§1189 


of  the  crossing.^  But  it  is  an  excuse  that  his  looking  or 
lUtoning  would  have  been  unavailing,'^  as  where  the  train 
came  from  a  direction  where  it  could  not  have  been  seen 
in  tirae;^  or  where  other  noises  drowned  the  rumbling  of 
the  approaching  train;*  or  where  he  could  not  see  if  he 
had  stopped  to  look,  and  could  not  have  heard  because 
the  train  made  so  little  noise.®  But  one  on  a  public  high- 
way who  approaches  a  railroad  track,  and  can  neither  see 
nor  hear  any  indications  of  a  moving  train,  is  not  charge- 
able with  negligence  in  assuming  that  there  is  no  car 
sufliciently  near  to  make  the  crossing  dangerous.  He  has 
a  right  to  presume  that  in  handling  their  cars  the  railroad 
companies  will  act  with  appropriate  care,  and  that  the 
usual  signals  of  approach  will  be  seasonably  given.* 
While  the  rule  of  law  requires  a  traveler  on  the  highway 
on  approaching  its  intersection  with  a  railroad  to  stop, 
look,  and  listen  for  approaching  trains,  yet  in  the  absence 
of  evidence  the  presumption  is  that  the  traveler  did  his 
duty  in  that  respect.^ 

Illustrations. —  A,  approaching  a  railroad  crossing  in  his 
wagon,  in  the  daytime,  in  a  city,  fails  to  look  both  ways  for 
approaching  trains,  and  is  run  over  by  a  train  which  is  ap- 
proaching at  a  rate  of  speed  greater  than  that  allowed  by  the 
ordinances  of  the  city.  Held,  contributory  negligence  in  A:  St. 
Louis  etc.  R.  R.  Co.  v.  Mathias,  50  Ind.  65.  A  drives  his  team 
along  a  road  running  parallel  with  and  near  toaraih'oad  track. 
As  he  approaches  the  crossing,  the  air  is  so  filled  witli  dust  that 
he  cannot  see  the  railroad,  and  his  wagon  makes  some  noise. 
XovcrtiicJess  he  attempts  to  cross  without  stopping  to  listen  for 
an  approaching  train,  and  his  horses  are  killed.     IMd,  that  lio 


'  Bukimnre  etc.  R.  R.  Co.  v.  Wliit- 
aerc,  .'i")  Oliio  St.  C27. 

-Itiivid  r.  11.  II.  Co.,  47  N.  Y.  400; 
Haokfortl  V.  R.  R.  Co.,  6  Lans.  381; 
Lenii:inl  v.  R.  R.  Co.,  10  Jouea  &  S. 

^  McOuire  r.  R.  R.  Co.,  2  Daly,  7G; 
Chicago  etc.  R.  R.  Co.  v.  Lee,  87  111. 
4J4, 

*  Davis  r.  R.  R.  Co.,  47  N.  Y.  400; 
Leonard  v.  11.  R.  Co.,  10  Joaes  &  S. 
225. 


^DonohTie  v.  R.  R.  Co.,  91  Mo. 
357. 

«  Tabor  v.  R.  R.  Co.,  4G  Mo.  .353;  2 
Am.  Rep.  517;  Ernst  r.  R.  R.  Co.,  35 
N.  Y.  9;  90  Ain.  Doc.  7(51;  Bcisiugel 
V.  R.  R.  Co.,  34  N.  Y.  G-J2;  90  Am. 
Dec.  741;  Cosgrovo  r.  R.  R.  Co.,  87 
N.  Y.  88;  41  Am.  Rep.  355. 

'  Schum  V.  R.  R.  Co.,  107  Pa.  St. 
8;  52  Am.  Rep.  4G8;  Wilcox  >-.  R.  R. 
Co.,  39  N.  Y.  358;  100  Am.  Dec.  440. 


"WMHMH 


§  1180 


NEaLIGENCE. 


20SS 


oiinno*  vccovi  ••  (Vininpos:   Flnnmiiuf  v.  /'.  R.  Co.,  -W)  Ci\\.  'J.').'{. 
One  (Irivini;  ;i  Id;   led  t(>;un,  in  puHsiiifif  ov^r  u  riiilroiid  tTossiii};^ 
no}:;l<'i'(t'(l   to   IdoU  towards  llio  west,  wlionco  u  fraiii  was  ;ip. 
j)n).n'liiiif;,  wlicnor  llicro  was  an  unolislnu'lcd  view  at.  pdintH 
two  liundri'd  and   fifty  I'cct  distant,  and  (il'ly  IVct.  distant  (tn  tli(> 
n)ad  lie  had  conio  (»n,  whipixnl  up  iiis  lioisos  instead  «)t' l»a(  kitifr 
down,  and   tluy  passed  safely  over,  l)ut.  tho  wagon  was  s(ni(|<. 
Jl(l(l,  that  his  adiuinistratrix  eould  not. reeover:  ('oniiclli/ v.  /,'.  /,'. 
('(»..  SS  N.  Y.  .".4(!.    Tiio  i)hiintift' was  injured  at  a.  railroad  crosH- 
ini?.     He  was  ridin<]f  in  an  open  earriag(%  by  (hiylight,  and  did 
not  se(<  the  sign  at  the  crossing,  thougii  ])lainly  visiMe.    lie  had 
a  eareful  (h'iver  and   a  steady  horse.     Jfcld,  not  snllieient,  (  vi- 
denee  of  (hi(>  care  on   his  i)art,  witliont  proof  that  the  driver 
looked  out  for  api>roaehing  trains:  Alh/)i.  v.  Ji.  Ii.  (^n.,  lOo  Mass. 
77.     DiH'eased  was  apiM'oaching  th(!  crossing  in  a  wagon.     Tho 
crossing  was  at  an  acute  angle,  and  tho  view  was  so  oi)stru('l('d 
by  trees  and  i-orn  that  a  train  could  not  bo  seen  Ix^yond  ton 
yards  from  the  track,  and  then  for  ou]y  i'lWy  yards.     Th(>  train 
was   moving  forty  miles  an  hour  without  giving  warning.     It 
did    not    ap])ear   that    deceased    stopped   and    looked   and   lis- 
tened.    //('/(/,  that  a  nonsuit   for  contributory  n(>gligence  was 
improper:  Srlniw  v.  R.  R.  Co.,  107  I'a.  St.  8;  52  Am.  Hep.  1(18. 
riaintilf  driving  over  a  railway  at   a  higliway  crossing,  liis 
liorsi>  caught  his  foot  between  the  rail  and  i)lanking,  and  toll 
down.      I'\)r  two  minutes  the  ])lain(ifr  was  busicsd  in  trying  (o 
dhscngage  the  f(H>t,  when  a  train  passing  broke  the  horse's  log. 
Held,  th;it   tho  rule  that   the    j)laintiir  should    have  sloppod, 
looked,  and  listened  before  driving  onto  the  track  was  not  ap- 
lilicable:    Ramjhwan  v.  R.  R.  Co.,  02  Pa.  St.  o?,^;  'M  Am.  Kop. 
GDO.     A  ])erson  about  to  cross  a  railroad  crossing  with  a  siiiglo 
track  and   infrecpient  trains  when  be  was  about  one  hundrod 
3'anls  from  tlu^  crossing  saw  a  train  with  tho  rear  towards  liini, 
going,  aj)parontly,  in  an  opposite  direction,     lie  did  not  koop 
bis  eyes  fixed  upon  the  train,  but  his  attention  was  distracted 
by  the  motions  of  i)ersons  at  some  distance,  who  were  waving 
liim,  but  whose  motions  ho  did   not  understand.     Jlcld,  that 
there  was  no  legal  obligation  on  him  to  keep  bis  eyes  fixed  on 
the  traijj,  but  the  (piestion  of  due  care  oi>  bis  part  was  for  llio 
jury:  Jionndl  v.  R.  R.  Co.,  30  N.  J.  1..  189.     The  deceased  was 
struck  and  kilbnl  while  attempting  to  cross  defendant's  railroad 
in  a  frequented  i)ath  loading  across  the  tracks;  the  day  was 
clear,  and   the  engine  might  have  been  seen  for  at  least  fifty 
yards  from  the  point  where  the  casualty  occurred.    The  boll  on 
the  engine  was  not  rung,  but  tho  bell  of  another  engine  stand- 
ing in  the  yard  near  by  was  being  rung  at  the  time,  wliioli 
might  have  misled  the  deceased  if  he  had  trusted  to  hearing 


20S9 


INJUUIKS    IJY    UAILllOADS. 


§    1190 


nlmio;   lio  could  not.  liiivo  Ixhmi  soon  iiftcr  ho  li.id  |);iss('d  upon 
the  ItMckH  ill  order  to  stop  IIk^  train.     Ifrld,  tli.il,  :ilt!M)U}j!;li  tho 
(ifl'cixl.iiirH  ('iiij)l()y<'<'H  were  ^^uilly  of  iicf^lij^t'iicc  in  not  sounding 
the  lull  on  tlu!  eiigiiu!  whi(;l»oaus(!d  iiu;  injury,  ytl.  .i  v»rdi(;t,  for 
till'  plaint  ill'  waH  erroneous,  as  lie  was  f:!;uilty  oi"  cont  riliulory  ncg- 
liirciico:   Ilitrlnn  v.  It.  11.  To.,  ()5  Mo.  '22.     I'lainlill"  was  crossing 
iiraiiwiiy  by  a  level  crossinjj;.    Alied^eand  l)uil(lin<i;s  ohstrueted 
tliii  view  so  thai  lie  could  not.  see  along  tlu;  liiK^  to  tiu!  left,  until 
]n>j.';iit  onto  tlu!  railroad,  hut,  In;  could  not  then  have  s(!cn,  and 
lie  (lid  not  look.     He  was  injured   hy  a  train  approncliiiig  from 
the  '"ft  on  tho  farther  line.     The  (Migiue-driver  did  not  whistlo, 
;mil    the   gati;-keep(!r  at  the    level  <!rossing   f.'ave   no  warning. 
//,,';/,  that   the  iiijurv  was  caused  solely  hy  plainlilV's  own  neg- 
IJLvn.v:    Darry  v.  U.  li.  Co.,  Kng.  Ct.  App.,  A'.)  I..  T.,  N.  S.,  7;VJ. 
A  was  killed  at  a  railroad  (a'ossing.     Tho  highway  crossed  tho 
tnick  at  an  acute  angle.    A  was  driving  a  gcMith;  horse,  and  tho 
n)iiililion  of  the  road  was  such  iiH  to  prevent  fast  driving.    Tho 
niglii  was  dark  and  misty,  hui  A's  witnesses  testified  that  tho 
]u;i(l  light  of  the  engitu!  could   have  heeii  seen   at  a  distance 
imicli  more  than  suHici(Uit  to  give  warning,  and  toenahh;  him  to 
cscaiH!  injury.     Jfdd,  that  A  should  luive  been  nonsuited:   Tol- 
ma,i  V.  ll  It.  Co.,  «J8  N.  Y.  198;  50  Am.  Hop.  (Mi). 


i^  1190.  Other  Acts  of  Contributory  Negligence  at 
Crossings.  —  VVlioro  tlio  pluintill'  voluiiturily  [)laees  liim- 
i^clf  ill  a  dangerous  position  at  tho  ovossinj^,  this  is  con- 
tributory nogligonco  on  liis  part.'  The  following  have 
been  held  to  bo  contributory  negligence:  Passing  under  a 
car  while  it  is  standing  still  or  in  motion;"  cliinbing  over 
CiU'.-;  at  rest,  without  looking  to  see  if  they  are  attatdied  to 
au  eugiiie;''  after  having  nearly  crossed  a  track,  attenipt- 
\\\'^  to  go  back  when  the  approaching  train  was  only  four 
huiuh'ed  feet  away;'*  driving  or  passing  through  a  space 

Mlious  V.  R.  R.  Co.,  07  Mc.  100;  Dunn,  50  Ta.  St.  '2.S0:  I'.ck  r.  R.  R. 

Bniolv,  /■.    W.   R.  Co.,  1    AIjIk    App.  Ci>.,  50  Conn.  ;{7;);  Whitney  /•.  U.  R. 

211;  McMahon  v.  R.  R.  Co.,   \V.)   Md.  Co.,  Oi)  Mc.  208;  Chira^oolo.  R.Jl.  Co. 

4:tS;  L>>\vis  V.  R.  R.  Co.,  88  Mil.  588;  v.  Millor,  4(5  Mi<:li.  iuVl. 

17  .Via.  Krp.  521;  Central  R.  R.  Co.  v.  ■■*  McMahon  v.    \i.  il.  to.,    '^\)  Md. 

Muoiv,  '1\  N.  J.  L.  821;  Wilds  v.  R.  438;  Central  R.   R.  Co.  v.  Dixon,  4'2 

n.  Co.,  -J'.j  N.  Y.  315;  Indiana  etc.  R.  Ga.  WIT. 

R.  I'n.  r.  MeCIaren,  02  Ind.  500;    In-  »  Lcwia  v.  R.  R.  Co.,  3SMd.  588;  17 

diiiiui.io.  R.  R.  Co.  r.  Staples,  02  111.  Am.  Rep.  521;  CMara  v.  R.  R.  Co., 

311!;  Falter   c.    R.  R.  Co.,   20   Minn.  18  Hun,  102. 

4im;  Slub.T  V.  R.  R.  Co.,   28   Minn.  *  McPhillips  v.  R.  R.  Co.,  12  Daly, 

103;    I'ittbburgh  etc.   R.   R.   Co.   v.  365. 


i  1190 


NEGLIGENCE. 


2090 


left  between   two   cars;'  leaving  a  span   of  horses  un. 
hitched  in  close  proximity  to  a  railroad,  at  a  time  wliou 


'  Lake  Shore  etc.  R.  R.  Co.  v.  Clem- 
ens, 5  111.  App.  77;  Lake  Shore  etc. 
U.  R.  Co.  V.  rinchiu,  112  Ind.  592, 
the  court  saying:  "There  are  cases 
where  the  court  must,  as  a  matter  of 
law,  i^eclaro  that  au  act  constitutes 
negligence.  Where  the  facts  are  in- 
dispiUcil,  anil  load  to  but  one  infer- 
ence, tlio  question  whether  there  was 
or  was  not  negligence  is  a  question  of 
law:  K.  R.  Co.  v.  Si)encer,  1)8  Ind. 
180.  This  is  such  a  case.  It  must  be 
affirmed  a^  matter  of  law,  on  the  facts 
exhiljitod  in  the  answers  of  the  jury, 
that  the  appellee  was  guilty  of  negli- 
gence in  attempting  to  pass  between 
the  cars,  ami  in  the  manner  in  which 
he  took  to  carry  out  the  attempt.  He 
knew  the  train  was  not  to  remain  in  the 
town,  but  was  there  on  its  trip  west- 
ward, and  ho  know  that  ithad  Ijroken 
in  two;  so  that,  even  if  he  was  not  negli- 
gent in  making  the  attempt  to  cross  ho 
was  negligent  ia  the  manner  in  which 
he  conducted  himself  in  making  his 
way  betwoeu  the  cars.  If  it  were  con- 
ceded that  he  was  without  fault  in  en- 
deavoring to  pass  through  the  train, 
still  it  must  be  held  that  he  was 
negligont  in  not  exercising  a  higher 
degree  <if  care  in  effecting  what  no 
rca!iona!>lu  man  could  avoid  knowing 
was  a  ilangcnius  passage  between  the 
cars.  He  was  burdened  with  things 
that  interfered  with  his  safely  clam- 
bering through  the  train;  he  made  no 
liastc,  but  laid  the  things  he  had  in 
his  hands  on  tlie  end  of  one  of  the 
cars,  and  before  leaving  his  dangerous 
position  piclcod  them  up,  and  put  one 
of  thum  in  his  pocket.  This  was  not 
such  care  as  was  required,  even  had 
he  been  crossing  with  permission  of 
the  railroad  company,  and  without 
fault.  It  by  no  means  follows  that 
bcLViu-iC  a  man  may  do  an  act,  that  he 
may  do  it  carelessly.  But  we  need  not 
place  our  <lecision  upon  the  ground 
that  the  manner  in  which  the  appellee 
attempted  to  cross  between  the  cars 
made  him  guilty  of  contributory  neg- 
ligence, for  lie  was  guilty  of  negli- 
gence in  making  the  attempt.  There 
was,  theretore,  negligence  in  entering 
upoii  the  act,  as  well  as  in  the  manner 
of  performing  it.     A  person  who  has 


knowledge  that  a  train  of  cars  is  stop. 
pir.g  temporarily  at  a  way-station  on 
its  way  to  its  destination  has  no  ri"ht 
to  assume  the  risk  of  passing  botwieii 
the  cars.  It  is  a  danger  so  immciliuto 
and  so  great  that  he  nmst  not  iiunir 
it:  Ranch  v.  Lloyd,  31  Pa.  St.  D.kS; 
Memphis  etc.  R.  R.  Co.  v.  Copi  liuid' 
61  Ala.  376;  Stillson  v.  R.  11.  (',).,  07 
Mo.  671 ;  Lewisr.  R.  R.  Co. ,  .^S  M,l.  r.^S- 
Haitian  v.  R.  R.  Co.,  30  U.  C.  C.  i'.  s'j' 
It  will  not  avail  the  plaintiff  tiiat  lie 
was  not  fully  aware  of  his  dan^^c  !■;  for 
a  plaintiff  is  bound  to  know  the  ux. 
tent  of  the  danger  in  cases  like  this, 
where  the  circumstances  arc  kimwa 
to  him,  or  the  hazard  is  appmcnt  to 
a  reasonably  prudent  man:  I'diusyl. 
vania  R.  R.  Co.  v.  Henderson,  -W  ]\ 
St.  449;  Southern  R.  R.  Co.  r.  Ken- 
drick,  40  Miss.  374.  A  man  nu'.st  usu 
his  senses,  and  is  not  excused  wlioiche 
fails  to  discover  the  danger,  if  lie  Imj 
made  no  attempt  to  employ  tlio  facul- 
ties nature  has  given  him:  2  WOoiloa 
Railway  Law,  1319,  note  2;  Tole.hjito, 
R.  R.  Co.  V.  Goddard,  25  Ind.  200.  One 
who  attempts  to  cross  between  thu  c;irj 
of  a  train  which  ho  knows,  or  mi;;lit 
know  by  using  his  natural  f.iciilti's 
is  likely  to  move  at  any  moment,  is 
guilty  of  negligence,  liut  ]u:ro  the 
case  is  stronger,  because  tht:  lart  is 
that  the  appellee  might  have  k;io\vii, 
by  observation  or  'by  feeling,'  that 
the  train  was  actually  in  motion  \v!kn 
he  attempted  to  'get  down.'  T!ie 
fact  that  a  plaintiff  has  knowK  il-,:  df 
a  danger  that  he  will  encounttr  if  he 
pursues  his  way  does  not  always  iiLtes- 
sarily  preclude  a  recovery,  'mt  it  is 
in  every  case  an  important  factnr:  To- 
ledo etc.  R.  R.  Co.  V.  UraniKi  :aii,  15 
Ind.  490,  and  cases  cited;  City  nf  Hiiii- 
tiugton  V.  Breen,  77  Ind.  2!):  Miiril.y 
V.  City,  83  Ind.  76;  Wilson  r.  Trafiil.-ar 
etc.  Co.,  83  Ind.  326;  Henry  etc.  (Vc 
Jackson,  86  Ind.  Ill;  Navo  '•.  Flaik, 
90  Ind.  205;  46  Am.  Rep.  20.'i;  Towa 
of  Albion  v.  Hetrick,  90  Ind.  ."iJ.'i;  W 
Am.  Rep.  230;  Board  v.  Donilikr.  lU 
Ind.  72;  City  of  South  Bend  -•  ILirIv, 
98  Ind.  577;  49  Am.  Rep.  792:  Cityot 
Indianapolis  v.  Cook,  99  Ind.  10;  City 
of  Aurora  v.  Bitner,  100  Ind.  SOC;  Beach 
on  Contributory  Negligence,  40,  '2oi. 


2091 


INJURIES   BY   RAILROADS. 


§1190 


the  train  usually  comes  along,  where  the  owner  after- 
waitls,  when  the  train  arrives,  and  when  the  horses  have 
moved  to  the  tra<!k,  attempts  to  rescue  them,  and  is  in- 
juicd;'  approaching  and  stepping  upon  the  track  during 
a  high  wind^  with  his  hat  over  his  face  and  without  look- 
ing up  the  track;^  driving  or  running  towards  the  crossing 
at  sucli  a  high  rate  of  speed  as  to  be  unable  to  stop  in  time 
to  avoid  danger;^  endeavoring  to  drive  or  rush  across 
ahead  of  the  train;'*  even  though  it  is  going  faster  than 
tlic  law  allows  and  than  the  person  anticipated,*  or  starts 
without  the  usual  signal." 

But  the  liigh  rate  of  speed  is  not  necessarily  negligence, 
where,  though  great,  it  is  not  unreasonably  or  recklessly 
so,  and  would  not  necessarily  lead  to  a  collision;''  or  where 
the  rapid  driving  is  resorted  to  as  the  only  practicable 


But  tlio  fact  that  the  danger  is  known, 
uiiiiiuht  lit!  known  by  the  exercise  of 
thu  natural  faculties,  will  preclude  a 
recovt'iy  where  it  is  immediate,  and  of 
jiuli  a  character  as  to  impose  upon 
oiia  who  undertakes  to  pass  the  dan- 
ger a  hazard  that  a  prudent  man 
wnuM  not  incur.  A  man  lias  no  right 
to  cast  liiniself  upon  a  known  danger 
where  the  act  subjects  him  to  great 
luril.  1 1  tliero  is  a  risk,  apparent  or 
known,  that  will  probably  result  in  in- 
jury, lie  nuist  not  encounter  it:  Toledo 
etc"  J-  K.  Co.  V.  Brannagan,  75  lad. 
4',!!).  It  is  to  l)e  determined  from  the 
facts  (if  the  case  whether  the  known 
(bML:cr  is  likely  to  subject  the  plain- 
till'  to  injury;  and  if  it  is,  then  he 
must  he  held  guilty  of  negligence  in 
encountering  it.  While,  therefore,  it 
Ciiiiiiot  lie  helil  that  one  who  does  not 
g(i  (lilt  (if  his  way  to  avoid  a  known 
ilaii^^tr  is  not  always  guilty  of  contrib- 
ut(iry  negligence,  yet  it  must  be  held 
that  lie  is  guilty  of  negligence  where 
he  attempts  to  pass  the  danger,  where 
there  is  such  a  probability  of  injury 
as  would  deter  a  reasonable  man  from 
assuming  the  risk  of  passing  it.  If  the 
risk  is  great,  or  is  sucii  as  a  prudent 
pcrsoii  would  not  assume,  then  the 
person  who  does  assume  it  is  guilty  of 
such  contributory  negligence  as  will 


preclude  a  recovery:  Town  of  Gosport 
V.  Evans,  112  Ind.  133.  In  this 
ca.se  the  risk  of  passing  between  a 
train  of  cars  likely  to  get  under  way 
at  any  moment  was  ruch  as  no  one 
could  assume  witliout  being  guilty  of 
negligence.  This  is  .me  of  the  cases 
where  it  mftst  be  declared,  as  matter 
of  law,  that  the  risk  is  so  great  that 
no  one  who  has  a  knowledge  of  the 
danger  has  a  right  to  assume  it. " 

'Dcville  V.  R.  11.  Co.,  50  Cal. 
383 

^Nicholson  v.  R.  R.  Co.,  41  N.  Y. 
525. 

^  Grippen  v.  R.  R.  Co.,  40  N.  Y.  34; 
Salter  v.  R.  R.  Co.,  13  llun,  187;  Har- 
ing  V.  R.  R.  Co.,  13  Bar)).  1);  Wilds 
V.  R.  R.  Co.,  24  N.  Y.  4o0;  Ohio  etc. 
R.  R.  Co.  V.  Eves,  42  111.  2S8. 

*  Grows  w.  R.  R.  Co.,  07  Me.  100; 
Rigler  v.  R.  R.  Co.,  <)4  N.  C.  G04; 
State  V.  R.  R.  Co.,  70  Me.  .357;  49  Am. 
Rep.  G22;  Baltimore  etc.  R.  R.  Co.  i\ 
Mali,  CGMd.  53;  Schwartz  r.  R.  11.  Co.. 
4  Robt.  347;  Pennsylvania  R.  R.  Co.  v. 
Morel,  40  Ohio  St.  338;  Cliicago  etc. 
R.  R.  Co.  V.  Becker,  70  III.  25. 

'^  Kelley  v.  R.  R.  Co.,  75  Mo.  138. 

*■  Baltimore  etc.  R.  R.  Co.  v.  Depew, 
40  Ohio  St.  121. 

'  Hack  ford  v.  R.  R.  Co.,  53  N.  Y. 
G54;  43  How.  Pr.  222. 


§1190 


NEQLIOENCE. 


2002 


means  of  extricating  himself  from  the  difficulties  of  t]io 
situation,  by  one  who  has  without  negligence  driven  .su 
near  the  track  as  to  render  retreat  apparently  impossible.' 
It  may  or  may  not  bo  negligence  for  one  about  to  cross  a 
track  not  to  wait  until  a  train  wh'ch  has  just  passed  has 
got  far  enough  away  to  afford  an  unobstructed  view  oI'iIk. 
track  in  that  direction.'^  And  it  has  been  held  that  one 
who  drives  a  known  vicious  or  skittish  horse  on  a  puljlio 
road  running  by  tho  side  of  a  railroad  does  so  at  his 
peril.^ 

Illustrations.  —  A  traveler  is  killed  in  consequence  of  at- 
tempting in  the  night-time  to  open  tho  gates  of  a  railway  coiu- 
pany  at  a  place  where  the  highway  crosses  their  railway,  thciv 
being  no  servant  of  the  company  in  attendance  to  open  tlu' 
gates.  No  damages  can  bo  recovered  of  the  railway  coinpaay, 
since,  under  the  statutes  regulating  the  subject,  he  had  iiu 
right  to  attempt  to  open  the  gates:  Wycdt  v.  R.  R.  Co.,  0  iJcst  ^V- 
S.  709.  A  was  killed  by  a  train  at  a  crossing,  the  view  of  which 
was  obscured  by  smoke.  Had  ho  waited  a  moment  he  cnuM 
have  seen  tho  train.  Hcldj  that  a  verdict  for  the  detciidaiit 
was  properly  ordered:  McCrory  v.  R.  R.  Co.,  31  Fed.  llep.  "i;!!. 
A  man  familiar  with  a  railroad  crossing  at  the  time  of  running 
of  trains  heard  tho  rumbling  of  a  regular  passenger  train,  wliicli 
carried  no  head-light  as  usual,  only  a  lantern,  which  he  tliil  nut 
see.     lie  supposed  tliat  the  train  which  he  heard  was  goini;  the 


*  Macon  etc.  11.  11.  Co.  v.  Davis,  27 
Ga.  li:}. 

-'  Phila.  etc.  R.  R.  Co.  v.  Carr,  99 
Pa.  St.  505;  lugorsoll  v.  R.  R.  Co.,  4 
Hun,  27; . 

3  riiila.  etc.  R.  R.  Co.  V.  Stinger,  78 
Pa.  St.  210,  t'jo  court  saying:  "It  is 
true,  the  law  will  not  banish  horses 
from  tlio  highways.  It  is  equally  clear 
that  the  plaiatitf  had  a  right  to  drive 
tho  hor-e  referred  to,  or  any  other 
horse,  however  vicious,  u2)on  the 
Gray's  I'erry  road,  at  this  particular 
point  of  danger.  Wo  are  not  dealing 
■witli  the  alwdhite  rights  of  the  parties. 
The  quoition  he^-e  is  one  of  prudence 
and  care.  Wlieii  a  man  drives  an 
unhrokea  or  vicious  horse,  or  one  that 
is  easily  frighttsned  by  a  locomotive, 
along  a  puhlin  road  running  side  by 


amounting  to  rccklesniess.  Th:it 
there  was  no  otiier  road  ior  the  pliiii- 
titf  to  use  does  not  nuitbc:'.  'iiurt 
were  other  horses  wliicli  In;  iir^ht 
have  procured  for  u.-o  ia  .such  a 
dangerous  l<)cality.  I>uhes  ami  dMi- 
gatious  arc  mutual.  The  railrnad  miii- 
pany  had  as  high  a  right  to  move  tluir 
trains  upon  their  road  as  tho  pluiiititf 
had  to  drive  his  horse  ali)ng  (liay,'- 
Ferry  road.  Both  wei-e  houml  tmlie 
exercise  of  care  in  accdPtiaiioc  wiili 
the  circumstances  of  tlie  easo.  \\v 
do  not  lose  sight  of  tho  fact  t!i.it  i.i 
such  questions  as  this  the  iiituivsts 
of  other  parties  are  coiu'L'nu.l.  Tlif 
right  of  a  man  to  risk  iiis  ii".ii  l.ii', 
and  tiiat  of  his  horse,  may  in-  mii- 
ceded;  but  not  the  right  1)y  an  ;ut  nt 
negligence,  if  not  of  reckK'ssiRss,  to 
place  in  peril  the  lives  of  imiuiiu.l 


Is. if 


side  with  a  rajlroad,  and  liable  to  be     ^ 

met  or  overtaken  by  a  train,  he  does     others  who  may  happeu  to  be  tiavil- 

BO  at  his  own   ritik.      It  is  au   act    iug  ia  a  traia  o£  cars. ' 


2092 


20O3 


INJURIES    IJY    RAILROADS. 


§1191 


>S  of  tlifi 

rivuu  so 
:)Os?<il)k'.' 

0  cross  a 
issod  lias 
jw  ol'  Uic 
tluit  one 

1  a  public 
so  ut  his 


2ncc  of  at- 
ilway  com- 
way,  thorn 
)  opi'ii  Iht; 
'  coinpuiiy, 
ho  had  no 
).,  ()  r.cst  il- 
'\v  of  which 

it    lu!  I'lluM 

delendaiit 
I.  Hep.  ."kU. 

of  nmiiing 
rain,  wliicli 
\  lie  (lid  not 


IS  gOiiiii; 


tlie 


11CS3.  That 
(11-  Iho  I'liiu- 
ilMW  T'lirre 
sh  In;  iii'j^lit 
iii  such  1 
tle.^  iui'i  I'hli- 
srailrd.ul  iwii- 
ti)  iiuiVL'  ihrir 

tho  {iWuv.d 
ali>iig  (irays 

liciuiul  tiiilie 
(irtuuii'o  Willi 
U!  ca:-^".'.  ^\e 
lie  nu:tt'uui,i 

llu!   iatuiysts 
ucL'riu'.l.    'ilii.' 

lii.s  (I'vu  III'. 

lll.iy   in-  io!l- 

it  1)y  an  act  ut 

•ckiossiR'ss,  to 

)f  luuuli'ii'l.--  »f 

to  bu  travd- 


nthcr  Wiiy,  and  ho  stopped  npon  the  track  and  wa.'s  struck  and 
in)urr(h      Others  n(!ar  hy  saw   tho    lantern.     Jlcid,   contrihu- 
t„n-  iu'giij,'<rico:    Mahlr.a  v.  li.  It.  (\h,  4\)  Midi.  585.     Plaintiff, 
wliili'   caring  for  cattle  in   a  car,  crossed  three  or  four  trucks, 
and  whili'  standing  on  the  fifth  turned  to  look  around  in  re- 
cjHiiise   to   shouting,  and  was  struck  by  an  engine.      The  five 
ir.u'ks  were  on  a  level,  fully  exposed;  and  an  engine  could  be 
jecii  for  several  hundred  feet  in  either  direction.     Jleld,  con- 
trikitory  negligence:  RogxUid  v.  R.  R.  Co.,  31  Minn.  208.    There 
were  two  roads  of  about  equal  length  leading  to  plaintiff's  des- 
tination, and  he  took  the  one  near  the  railroad,  knowing  that 
lie  was  likoly  to  meet  a  train,  hut  not  knowing  that  the  road 
WIS  not  ])roperly  fenced  on  the  side,  and  his  horse,  taking 
fright  at  tiie  train,  threw  him  over  the  banking  where  the  fence 
wasf;on(^     Held,  not  perse  negligence:   Templeton  v.  MontpeJier, 
'/)  Vt.  o2S.      The  wife  of  a  railroad  employee  carrying  her 
liusbiind  his  dinner  started  to  cross  six  busy  tracks,  and  step- 
[lin^f  from  behind  some  cars  on  one  she  was  stru(;k  by  an  engine 
hacking    down   on   another.      Held,   contributory   negligence: 
P-jilld-  v.  R.  R.  Co.,  5-4  Mich.  273.      Plaintiff,  a  girl  sixteen 
years  old,  was  passing  along  the  street  across  defendant's  tracks 
(live  in  number).     She  looked  both  ways  for  trains,  and  when 
ahont  midway  of  the  crossing,  stopped  for  a  train  to  pass  which 
was  comiiig  from  the  east.    The  position  in  which  she  stood  was 
siilliciently  near  another  track  for  her  to  be  struck  by  the  ten- 
der of  a  engine,  which,  unseen  by  her,  backed  up  from  the  west, 
without  any  signals  of  warning.      Held,  that  a  nonsuit  was 
error;  ITayrroft  v.  R.  R.  Co.,  G4  N.  Y.  G36.     Plaintiff  was  stand- 
ing at  a  railway  crossing,  in  a  street  where  there  were  many 
trains  passing  and  much  switching  done;  while  waiting  for  one 
train  to  i)ass,  he  was  struck  behind  by  another  train,  which  was 
running  at  the  rate  of  ten  miles  an  hour,  in  violation  of  a  city 
ordinance.     Held,  that  whatever  negligence  might  be  charged 
totlie  plaintiff  was  slight,  and  that  of  the  company  was  gross: 
PitiJiii rijli.  etc.  R.  R.  Co.  V.  Knutson,  69  111.  103.     A  postmaster 
at  a  station,  hearing  a  train  approach  at  about  8:40,  p.  m.,  the 
time  the  mail  train  usually  passed,  started  with  his  mail-bags 
[to cross  the  track  to  the  platform.     The  train  Avas  then  twelve 
[luindred  feet  distant,  but  running  at  great  speed.     Relying  on 
its  stopping,  he  was  struck  by  the  locomotive  and  killed.    The 
I  train  was  a  freight  train,  which  had  been  ordered  to  go  without 
stopping,  the  mail  train  being  behind  time.     Held,  contribu- 
jtory  negligence:  Moody  v.  R.  R.  Co.,  68  Mo.  470. 

ni91.    Persons   under  Physical  Disabilities  —  Chil- 

Idren.  — Physical  disabilities  of  the  traveler  do  not  excuse 


8  1191 


NEGLIGENCE. 


2094 


him  from  using  caro,  but  rather  increase  his  duty  to  be 
vigilant;  as,  for  instance,  deafness,"  or  drunkenness."  It 
is  contributory  negligence  for  one  of  defective  eyesight 
and  hearing  to  walk  upon  a  railroad  track  at  a  time  w  hen 
a  train  is  known  to  be  due.^  But  a  railroad  sued  for  un 
injury  to  a  j'^-'^senger,  who,  while  about  to  alight  I'nnu 
a  train,  was  thrown  down  by  a  collision  Avi*  i  a  switch- 
engine  violently  run  against  the  train,  cannot  defend  on 
the  ground  that  if  the  passenger  had  not  been  in  ftxble 
lie^alth  he  would  not  have  been  thrown  down."* 

Where  a  traveler  was  so  wrapped  up  to  protect  himself 
from  the  cold  that  he  could  not  hear  distinctly,  it  was  held 
that  he  was  under  an  obligation  to  exercise  special  vigi. 
lance.^  So  a  person  approaching  a  crossing  in  a  covered 
wagon,  having  an  umbrella  hoisted  inside  as  an  additional 
protection  from  rain  which  was  falling  at  the  time,  is  not 
in  the  exercise  of  reasonable  care  when  looking  only 
straight  ahead."  But  the  failure  of  a  traveler  in  a  covered 
buggy  to  let  down  his  buggy-top  before  starting  up  after 
stopping  his  horse  at  the  sign-board  of  a  railroad  crossing, 
and  looking  each  way  for  trains,  was  held  not  to  be  neg- 
li'gence  /><'>'  seJ  A  child  of  tender  years,  or  an  old  or  in- 
firm  person,  is  expected  to  exercise  no  more  than  that 
degree  of  care  due  from  those  of  his  age  or  condition.** 

'  Cleveland  etc.  R.  R.  Co.  v.  Terry,  8  *  East  Line  etc.  R.  R.  Co.  r.  Rush. 
Ohio  St.  r)70;  Central  R.  R.  Co.  v.  Fel-  ing,  01)  Tex.  300. 
ler,  84  Pa.  St.  'J'i(>;  Purl  v.  R.  11.  Co.,  72  "  Illinois  etc.  R.  R.  Co,  r.  Ehert,  74 
Mo.  KJS;  Ziiiiiiiennan  v.  R.  R.  Co.,  71  111.  3i)'J;  ButtertieU  v.  R.  R.  (o.,  10 
Mo.  470;  WaUlcle(\  R.  R.  Co.,  lOHun,  Allen,  5.T2;  Stevea  r.  It.  11.  ('u,,  IS 
90.  It  ii  negligence  for  a  deaf  person  to  N.  Y.  4'22;  Chicago  etc.  R.  K.  (.'o.  i\ 
drive  an  unmanageable  horse  across  a  Still,  19  111.  r>08;  71  Am.  ]>ec.  ffl; 
railroad  track  when  a  train  is  ap-  Hanover  etc.  R.  R.  Co.  r.  Coyle,  '4 
proaching:  Illinois  etc.  R.  R.  Co.  i:  Pa.  St.  390;  Salter  ?-.  R.  R.  Co.,  '.5 
Buclmur,    28  111.  299;    81    Am.   iJec.     N.  Y.  273. 

282.     Where  persons  running  a  train,         •*  ShelBeld  v.   R.   R.  Co.,  21  Barb. 
knowing  tliat  a  man  on  the  track  is 
deaf,  run  him  down,  the  company  is 
lialde:  Int.  &  G.  R.  R.  Co.  v.  Smith, 
62  Tex.  2.V2. 

■'  Chicago  etc.  R.  R.  Co.  v.  Bell,  70 
111.  102;  Toledo  etc.  R.  R.  Co.  v 
Riley,  47  111.  514. 

»  Maloy  V.  R.  R.  Co.,  84  Mo.  270, 


7i)  N.  Y. 


339. 

'  Stackus  V.  R.  R.  Co. 
404. 

i^Elkins  V.  R.  R.  Co.,  11.",  Mas?. 
190;  Chicago  etc.  R.  R.  Co.  v.  Bucker, 
84  111.  483;  Costello  v.  R.  R.  Co.,  tiJ 
Barb.  92;  Phila.  etc.  R.  R.  Co.  r. 
Spearen,  47  Pa.  St.  300;  80  Am.  Dec, 


20^5 


INJURIES    BY    RAILROADS. 


§  1192 


I.  Co.  r.  Rush. 


TixnsTRATiONS.  —  The  plaintiff,  or  the  driver  of  tlio  wnpoii  in 
phi 'li  He  was  seated,  knew  not  tliat  they  liad  arrived  at  the 
(>l•ll^^in^;,  although  the  latter  had  previous  knowhnlge  that  the 
road  erosHt.'d  nt  that  point,  but  there  was  no  Kign  to  give  them 
iiouoe,  and  the  train  was  running  at  the  rate  of  thirty  miles  iin 
lidur,  giving  no  signals  of  its  approach.     IIcJil,  that  the  facts 
(h;it  the  driver,  a  boy  ten  years  of  age,  had  the  lappets  (if  his 
cap  tied  over  his  ears,  and  did  not  look  or  listen  for  the  train, 
nor  tell  his  companion  what  he  knew  of  the  crossing,  though 
coiuiH'tenl  to  go  to  the  jury  as  evidence  of  negligence  on   the 
j);\rt  of  the  plaintiff,  were  not  conclusive:  Ellcim^  v.  7*.  /?,  Co., 
11')  M.iss.  lOO.     A  driver  muffled  up  approached  slowly  in  a 
covcii'd  wagon  a  railroad  crossing  with  which  he  was  familiar, 
without  looking  out  or  stopping  at  a  place  where  one  could  not 
Bee  up  and  down  the  track  till  within  sixteen  feet  of  it.     irchl, 
guilty  of  negligence:  Hanover  11.  R.  Co.  v.  Coylc,  55  Pa.  St.  39G. 
A  came  up  from  a  cellar  with  two  bags  of  shorts  on  his  right 
shoiuder,  so  that  his  view  on  that  side  was  completely  obstructed, 
and  probably  so  as  to  prevent  his  hearing  in  his  right  car,  and 
knowing  the  precise  location  of  the  track,  and  that  trains  of  cars 
were  constantly  passing,  walked  onto  the  track,  where  he  was 
run  over  by  the  cars.     Persons  standing  around  saw  the  cars 
approaching.     The  space  from  the  cellar  to  the  track  was  open, 
and  used  by  the  public  to  pass  and  repass,  but  was  not  a  public 
crossing.     Heldy  that  he  was  guilty  of  such  negligence  that  the 
coiapany  were  not  liable:  Rothe  v.  R.  R.  ^Co.,  21  Wis.  250. 

§  1192.    Trespassers  on  Tracks.  — Duty  and  Liability  of 

Company.  —  It  is  held  in  some  cases  that  a  railroad  com- 
pany is  under  no  duty  towards  trespassers  on  its  track, 
and  that  except  at  railroad  crossings,  where,  as  we  liavo 
seen,  the  public  has  a  right  of  way,  a  person  walking  or 
being  upon  a  railroad  track  does  so  at  his  peril,'  and 


541;  Bolaud  v.  R.  R.  Co.,  36  Mo.  484; 
I»al)ol  r.  R.  R.  Co.,  GO  Mo,  475;  Clii- 
cajjocto.  K.  R.  Co.  v.  Murray,  71  111. 
tiOl;  .Mc(  Govern  v.  R.  R.  Co.,  07  N.Y. 
417;  ra.hiuah  etc.  R.  R.  Co.  v.  Hoehl, 
IJBudi,  41;  Thurber  v.  R.  R.  Co.,  60 
N.  Y.  ;v.'0;  Warner  v.  R.  R.  Co.,  6 
Plula.  o-.M;  Haas  v.  R.  R.  Co.,  41  Wis. 
44;  OMara  v.  R.  R.  Co.,  38  N.  Y. 
44J;  'JS  Am.  Dec.  01,  the  court  saying: 
"Till!  old,  the  lame,  and  infirm  are 
cntitleil  to  the  uso  of  the  street,  and 
mure  euro  must  be  exercised  towards 
tkeui  by  eugineera  than  towards  those 


who  have  better  powers  of  motion. 
The  young  arc  entitled  to  tlie  same 
rights,  and  cannot  bo  expected  to  ex- 
ercise as  good  foresight  and  vigilance 
as  those  of  maturer  years. " 

'  Mulherrinw.  R.  R.  Co.,  81  Pa.  St. 
366;  Little  Schuylkill  etc.  II.  R.  Co. 
V.  Norton,  24  Ta.  St.  465;  04  Am.  Dec. 
672;  Philadelphia  etc.  R.  R.  Co.  v. 
Hummcll,  44  Pa.  St.  275;  84  Am.  Dec. 
457;  Nolan  o.  R.  If.  Co.,  5.3  Conn.  461. 
However  fast  a  wild  train  may  run, 
the  company  is  not  chargeable  with 
negligence  aa  to  one  who  is  croaaing 


g  1192 


NEGLIGENCE. 


2000 


tlint  tho  c'omi)Mny  is  not  liablo,  except  where  the  injury  is 
wanton  or  inlcntional.' 

On  tljo  other  hand,  it  is  held  ])y  otlier  courts  tlnit  even 
as  to  troHinissors  the  railroad  in  l)onn<l  to  use  ordimuy 
care  to  prevent  injury  to  tlioni.^  This  rule  is  stated  in  a 
Missouri  ease  in  those  words:  "AVlien  it  is  said,  in  casoa 
wliero  the  phiintiff  has  been  gnilty  of  contributory  nog. 
ligenee,  tliat  the  company  is  liable  if  })y  tho  cxereisc  of 
ordinary  cjiro  it  could  have  prevented  tho  accident,  il  is  to 
be  understood  that  it  will  be  so  liablo  if  by  tho  exercise 
of  reason ablo  care,  after  a  discovery  by  defendant  of 
the  danger  in  which  the  party  stood,  tho  accident  could 
have  been  prevented;  or  if  the  company  failed  to  discover 
the  danger,  through  tho  recklessness  or  carelessness  of 
its  employees,  when  the  exercise  of  ordinary  care  would 
have  discovered  the  danger  and  averted  tho  calamity."* 
The  servants  of  tho  company  are  not  obliged  to  stoi)  the 
train  on  seeing  a  person  on  tho  track;  they  have  a  right 


the  truck  at  a  poiut  not  at  a  public 
cionsiiig.  Nor  doe.s  it  matter  that  no 
Bif^iiiil  wa;i  fiivou:  Shackloford  v.  R. 
11.  Co.,  Si  Ivy.  4a. 

'  Little  .SciuiylUill  R.  R.  Co.  v.  Nor- 
ton, 'Jt  I'a.  St.  40j;  04  Am.  Doc.  67'J; 
lleil  r.  tnanding. 4'2  Pa.  St. 493;  82  Am. 
Dee.  uST;  JuOcrsonvillii  etc.  R.  R. Co.  v. 
Guklsnuth,  47  1ml.  4.'l;  Lafayetio  etc. 
R.  11.  Co.  r.  JIiiUiiKui,  SSInd.  '287;  92 
Ai».  Dee.  :518;  Pittsburg  etc.  R.  R.  Co. 
r.  Collius,  S7  I'a.  St.  405:  30  Am.  Rep. 
371;  Ciuciiinati  etc.  R.  R.  Co.  v.  La- 
ton,  53  Ind.  310;  Evansville  etc.  R. 
R.  Co.  r.  Wolf,  59  Ind.  89;  Car- 
roll ('.  R.  11.  Co.,  13  Minn.  30;  Her- 
ring r.  R.  R.  Co.,  10  Ired.  402;  51  Am. 
Due.  39a;  Donaldson  th  R.  R.  Co.,  21 
Minn.  293;  Morrissey  v.  R.  R.  Co., 
]'JG  Mass.  377;  30  Am.  Rep.  G8C; 
Terro  llante  ote.  R.  R.  Co.  v.  Graham, 
95  Ind,  2SG;  4S  Am.  Dec.  719;  Mason 
V.  R.  R.  Co.,  27  Kan.  83;  41  Am. 
Rt'l).  405;  Fiazer  i'.  11.  R.  Co.,  81  Ala, 
185;  (30  Am.  Dee.  145;  Houston  etc.  R. 
R.  Co.  V.  Riehards,  59  Tex.  373;  Terro 
Haute  etc.  R.  R.  Co.  v.  Graham,  46 


Ind.  237',  Louis villo  etc.  R.  R.  Co.  v. 
Howard,  82  Ky.  212;  Western  etc, 
R.  R.  Co.  *'.  Bloomingdale,  74(i;i.  004. 
One  who  without  authority  cntLTs 
upon  a  railway  track,  and  wlul  'Jure 
becomes  insensible  from  pruvi.ii'iitial 
causes,  and  while  in  this  state,  iiiul  in 
plain  view,  is  injured  by  a  train,  iiwy 
recover  damages  of  tho  comi);iiiy,  ul- 
thoufdi  tl'.o  injuries  were  not  w  .uitoii 
or  willful;  but  otherwise  if  his  iii-siiu- 
sibllwy  was  by  reason  of  his  \  nI  .iitaiy 
intoxication:  Houston  etc.  li.  ll.t'o. 
V.  .Syi.;)kins,  54  Tex.  015;  .".S  Am. 
Rop.  i);.:l. 

-Ifailan  v.  R.  R.  Co.,  05  Mo.  'J-J; 
E.o'.ni  V.  R.  R.  Co.,  50  Mo.  4(il;  11 
A:!i.  Rep.  420;  Isabel  ?-.  II.  11.  (.'o., 
GO  Mo.  475;  Finlayson  v.  R.  U.  I'o., 
1  Dill.  579;  Baltimore  etc.  il.  II.  Co. 
V.  State,  3G  Md.  3GG;  Bihiuioie 
etc.  R.  R.  Co.  V.  State,  33  Ml.  54'.'; 
Vicksburg  etc.  R.  R.  Co.  -.  Mc- 
Gowan,  G2  Miss.  CS2;  52  An..  Rep, 
205;  Mo.  Pac.  R.  R.  Co.  v.  ^\'elsen, 
C5  Tux.  443. 

»  Harlan  v.  R.  R.  Co.,  05  Mo.  22. 


2000 


2007 


INJURIES   BY   RAILROADS. 


§  1192 


ijuryia 

it  ovon 
rdiniiry 
xh\  in  a 
in  ciisos 
)ry  ucg- 
}rcis('  of 
t,  it  is  to 
exercise 
idant  of 
nt  ('(Hild 
discover 
ssnossj  of 
,ro  wuuld 
iumity."^' 
»  stop  the 
ro  ii  right 

R.  R.  Co.  V. 

rcstcni    etc, 
,7-K;ii.  G04. 
ority  t'litora 
|l  wliil    tln.Te 
jtviiviiiiMitial 
tato,  ;iiiil  in 
a  train,  iiiiiy 
oiupauy,  ill- 
not  w.iutuii 
ii  liis  iusou- 
lis  viil.-.:il;iry 
Itc.  K.  U.  Co. 
15;   ;'8  Am. 

(•,.j   Mo.  'l^l; 
iMo.   4r.l;  11 
11.  W.  t-'o., 
k  R.  U.  t-'o , 
tc.  11.  1'-  t-''). 
RiUiiiiore 

l:i;j  Ml.  r)4'i; 

ICo.  '.  Mo- 
12  All..  Kep. 
I.    t\  ^^'elseu, 

b  Mo.  22. 


to  n-!SUmo  tliut  ho  will  oboy  tho  warning  signals,'  except 
it  ^  icns,  where  tho  trespiissor  is  a  young  child,"  or  a  person 
wlio  it  is  (dear  does  not  hear  or  understand  tho  signals.'* 

Ill  general,  a  trespasser  on  a  railroad  track  who  fails  to 
ffot  out  of  tho  way  of  an  apj)roaehing  train,  and  is  injured, 
i<j,niilty  of  contributory  negligence,  and  will  bo  without 
remedy  against  tho  company,  even  though  it  also  has  been 
guilty  of  negligence.*  One  who  in  traveling  on  a  railroad 
track  is  overtaken  upon  a  trestle  by  a  train  can  maintain 
110  action  for  his  injuries.^  A  railroad  is  not  liable  for 
the  death  of  one  who,  while  walking  on  its  track  without 
rii^dit,  intermeddled  with  a  torpedo  which  had  boon  placed 
thcro  as  a  danger-signal,  and  was  killed  by  its  explosion." 
It  is  contributory  negligence  barring  a  recovery  to  go  to 
bleep  on  tho  track,^  or  walk  or  sit  down  there  while  drunk,' 
or  to  crawl  under  cars  which  have  temporarily  stopped;" 


1  Ilprrin,'  v.  R.  R.  Co.,  10  Trod. 
W2;  51  Am.  Dee.  395;  Toolo  v.  R.  R. 
C..,  S  Jouo-s  3t0;  Harty  v.  R.  R. 
L',1,.  I'.'  N.  Y.  408;  Terro  Hiiuto  otc. 
i;.  R.  Co.  r.  tlrahain,  40  Iiul.  'SM; 
Frc.>'i  '•.  R.  R.  Co.,  \i9  M.l.  574;  Manly 
r.  K.  U.  Co.,  74  N.  C  055;  ifoliiie:i  v. 
\{.  U.  (' 1.,  :!7  (la.  SOb,  Mahcr  r.  R.  R. 
Co..  lit  Mo.  '_*07;  Kenyon  v.  R.  R.  Co., 
.'  H;m,  1711;  Maloy  r.  R.  R.  Co.,  84 
Mo.  •::.);  Oiro  etc.  R.  R.  Co.  i-.  Walker, 
IKi  Iiiii.  l'.)'.j;  St.  Louis  otc.  R.  R. 
Co.  I'.  Monday,  4!)  Ark.  257. 

•P;i.  U.  R.  ( 'o.  V.  Morgan,  S'JPa.  St. 
i;U;  riiili.  clo.  R.  R.  Co.  V.  Spcaren, 
47  I'l.  S;.  no-);  Mover  v.  R.  R.  Co., 
••Nel).  oil);  McMillan  i'.  R.  R.  C,).,40 
Iowa.  '2'M ;  ivunyou  V.  R.  R.  Co.,  5  llim, 
4"ll;  E  ist  Tcuu.  etc.  R.  R.  Co.  v.  St. 
Mm,  r.  Siiocd,  524;  73  Am.  Doc.  141); 
LiiiwittM  I'tc.  R.  R.  Co.  ('.  Huli'mau, 
28Ii'i,l.  2.^7;  92  Am.  Dec.  318. 

'Fiwli  /•.  R.  E.  Co.,  .39  Md.  574; 
I  Cooke  11.  U.  Co.,  67  Ala.  533. 

M;un/:d>.s  V.  R.  R.  Co.,  50  How. 
iPr.  12li;  (lr.;cn  v.  R.  R.  Co.,  11  Hun, 
33:i;  I'oolf  /'.  R.  R.  Co.,  8  Jones, 
340;  lUi(ioi.s  etc.  R.  R.  Co.  v.  Hall,  72 
iri.'22-.';  niiuoLsetc.  R.  R.  Co.  i'.  Hoth- 
leriiigtf)!!,  S:{  111.  510;  Harlan  v.  R.  R. 
Co.,  04  Mo.  480;  Carlin  v.  R.  R.  Co., 
jSIIovva,  ;U0;  Murphy  v,  R.  R.  Co., 
132 


45  Iowa,  G61;  38  lovra,  539;  Laicher 
0.  R.  R.  Co.,  28  La.  Ann.  320;  Ban- 
croft V.  R.  R.  Co.,  11  Allen,  34;  97 
Mass.  275;  Michigan  etc.  R.  R.  Co.  v. 
Campau,  34  Mich.  40S;  Carroll  v.  R.  R, 
Co.,  13  Minn.  30;  97  Am.  Dec.  221; 
Donaldson  v.  R.  R.  Co.,  21  Minn.  293; 
Lako  Shore  etc.  R.  R.  Co.  v.  Hart,  87 
111.  529;  Rotho  v.  R.  R.  Co.,  21  Wis. 
250;  Elwood  v.  R.  R.  Co.,  4  Hun,  808; 
Grethon  v.  R.  R.  Co.,  22  Fed.  Rep. 
009;  Hughes  v.  R.  R.  Co.,  07  Tex. 
595. 

"  Tennenbrock  v.  R.  R.  Co.,  59  Cal. 
200;  Virginia  Midland  R.  R.  Co.  v. 
Barksdale,  82  Va.  330. 

«  Carter  v.  R.  R.  Co.,  19  S.  C.  20; 
45  Am.  Rep.  754. 

'  Illinois  etc.  R.  R.  Co.  ?'.  Hutchin- 
son, 47  111.  408;  Folder  v.  R.  R.  Co., 
2  McMuU.  403;  Richardson  v.  R.  R. 
Co.,  8  Rich.  120;  Herring  v.  11.  R. 
Co.,  10  Ired.  402;  Manley  v.  R.  R. 
Co.,  74  N.  C.  G55. 

•*  Id.  As  to  iJerson  slightly  drunk, 
see  Indianapol:-;  etc.  R.  R.  Co.  c.  Gal- 
breath,  63  III.  430. 

»  Ostertag  v.  R.  R.  Co.,  04  Mo.  421; 
Chicago  etc.  R.  R.  Co.  v.  Dewey,  26 
111.  255;  79  Am.  Dec.  374;  Chicago 
etc.  R.  R.  Co.  V.  Coss,  73  III.  394; 
Gahagaa  v.  R.  R.  Co.,  1  Allen,  187; 


L.-.^.*.,^.^-^......^...^..^ 


gll92 


NEGLIGENCE. 


2098 


or  to  stand  between  two  tracks  while  a  train  passes.*  That 
the  company  did  not  fence  its  road  is  immaterial;  the 
statute  as  to  fencing  is  for  the  benefit  of  dumb  animals, 
not  persons.^  The  omission  to  give  the  signals  required 
by  law  at  a  public  crossing  is  not  evidence  of  negligence 
in  a  suit  by  a  person  injured  upon  the  track  beyond  such 
crossing.  The  statute  is  for  the  benefit  only  of  persons 
traveling  upon  the  highway,  and  coming  upon  the  track 
at  such  public  crossing.'  By  statute  in  Tennessee  a  rail- 
road  is  required  to  keep  a  lookout  for  persons  on  the  track, 
and  to  employ  every  possible  means  to  prevent  such  acci- 
dents,  and  the  burden  of  proof  that  it  has  done  all  required 
of  it  is  on  the  railroad.* 

Illustrations. — A  portable  wood-sawing  machine  belonging 
to  a  railway  company  was,  by  direction  of  its  station-agent, 
fastened  upon  the  rails  of  its  track.  A  man  was  placed  there 
at  work.  Trains  did  not  pass  frequently,  and  the  person 
operating  the  machine  depended  upon  his  knowledge  of  the 
running  of  trains  to  remove  it  out  of  the  way.  A  train  belonging 
to  a  company  having  a  right  of  way  over  the  track  collided 
with  the  machine,  injuring  the  plaintiff.  Held,  that  these  cir- 
cumstances demonstrated  such  negligence  on  the  part  of  the 
plaintiff  that  he  was  not  entitled  to  recover,  even  though  the 
defendant's  negligence  concurred  in  the  injury:  Railroad  Com- 
pany V.  Norton,  24  Pa.  St.  465.  A  person  in  avoiding  a  run- 
away team  stepped  upon  a  railroad  track  and  was  injured  by 
a  hand-car,  through  the  foreman's  neglect  seasonably  to  order 
the  brakes  +^^o  be  applied.  Held,  that  the  railroad  company 
was  liable  for  the  injury:  Moore  v.  R.  R.  Co.,  47  Iowa,  689.  An 
infant  six  or  seven  years  old  lying  insensible  or  asleep  on  a 
railroad  track,  near  a  highway  crossing,  was  injured  by  a  train. 
He  was  perceived  by  the  fireman  and  engineer  in  time  to  stop, 
bnt  they  supposed  him  a  bunch  of  leaves  or  weeds,  until  too 
late.  No  warning  signal  was  given.    His  parents  had  forbidden 


M"Mahon  v.  R.  R.  Co.,  39  Md.  438; 
Levis  V.  R.  R.  Co.,  38  Md.  588;  17 
Am.  Rep.  521;  Central  etc.  R.  R. 
Co.  V.  Dixon,  42  Ga.  327;  Stillson  v. 
R.  R.  Co.,  67  Mo.  671. 

»  Moore  v.  R.  R.  Co.,  108  Pa.  St.  349. 

»  Lehey  v.  R.  R.  Co.,  4  Robt.  204; 
Van  Schaick  v.  R.  R.  Co.,  43  N.  Y. 
627. 


»  Harty  v.  R.  R.  Co.,  42  N.  Y.  46S; 
Elwood  V.  R.  R.  Co.,  4  Huu,  SOS; 
Philadelphia  etc.  R.  R.  Cv).  v.  Spearen, 
47  Pa.  St.  300;  86  Am.  Dec.  544; 
O'Donnell  v.  R.  R.  Co.,  6  R.  I.  211; 
Holmes  v.  R.  &  B.  Co.,  37  Ga.  593. 

*  Thompson  and  Steger'9  Stats.,  sec9. 
1166,  116S. 


2099 


INJURIES   BY  RAILROADS. 


§  1193 


him  to  go  on  the  track.  Held,  that  a  recovery  was  warranted: 
Meeks  v.  R.  R.  Co.,  56  Cal.  513;  38  Am.  Rep.  67.  A  boy  five 
or  six  years  old  went  for  his  own  amusement  on  the  platform 
of  a  railway  station,  and  stood  at  the  edge  to  watch  an  approach- 
ing train.  The  train  drew  up  at  the  rate  of  three  or  four  miles 
an  hour,  and  an  iron  step,  bent  and  projecting  a  few  inches  out- 
ward, struck  and  injured  him.  Held,  that  he  could  not  recover 
therefor:  Baltimore  R.  R.  Co.  v.  Schwindling,  101  Pa.  St.  258; 
47  Am.  Rep.  706.  An  engineer,  seeing  nothing  on  the  track, 
though  he  saw  children  near  it,  and  a  woman  running  toward 
the  train  and  waving  her  hands, made  no  effort  to  stop  the  train 
until  when  within  a  few  feet  he  saw  a  child,  but  too  late  to 
prevent  running  over  it,  as  he  might  have  done  had  he  slack- 
ened speed  when  he  saw  the  woman.  Held,  that  the  company 
was  liable  even  though  the  childs'  parents  were  negligent 
in  letting  it  play  so  near  che  track:  Donahoe  v.  R.  R.  Co., 
83  Mo.  543;  53  Am.  Rep.  594.  The  body  of  a  person  who 
had  been  run  down  by  an  express  train  at  night  was  brought 
to  a  station  near  at  hand,  and  by  the  station-master  placed 
upon  some  rubbish  in  a  warehouse,  on  the  supposition  that  life 
was  extinct,  without  examination  by  a  physician,  although 
the  propriety  of  such  examination  was  suggested  to  the  com- 
pany's agents.  In  the  morning  it  appeared  that  the  injured 
man  had  revived  during  the  night,  and  dragged  himself  a  con- 
siderable distance  along  the  floor,  where  he  was  found 
dead,  with  is  body  yet  warm,  in  a  stooping  posture,  pressing 
his  hand  upon  his  leg  to  stop  the  flow  of  blood  from 
an  artery  which  had  been  cut.  There  was  evidence  that  he 
bled  to  death  for  lack  of  assistance.  Held,  that  even  though 
the  accident  was  caused  by  the  negligence  of  the  deceased,  it 
was  proper  to  submit  to  the  jury  whether  his  death  did  not 
result  from  the  subsequent  neglecti  of  defendant's  servants: 
Northern  etc.  R.  R.  Co.  v.  State,  29  Md.  420;  96  Am.  Dec.  545. 

§  1193.    Persons  on  Track  by  Express  Permission.  — 

Where  persons  are  lawfully  upon  the  track  with  the  express 
permission  of  the  company,  the  latter  is  obliged  to  use 
due  c",re  and  vigilance  to  prevent  injury  to  them.'  Thus 
persoQs  engaged  in  repairing  or  laying  a  track,  or  other- 
wise at  work  on  the  right  of  way,  have  a  right  to  rely 
upon  the  company  giving  them  notice  of  the  approach  of 
trains.'^    A  person  havin^,  business  with  a  railroad  com- 

'  1  Thompson  on  Negligence,  4pl.     Barton  v.  R.  R.  Co. ,  1  Thomp.  &  C. 

Aa  to  paasengera,  see  Bailments.  297;   56    N.  Y.  660;  Stinson    v.  R. 

*Hal«y  V.  R.  R.   Ca,  7   Hun,  84;    R.  Co.,  32  N.  Y.  333j  McWilliams  v. 


i>»Mi«>muMMMMk«lMWNIWkMMl 


§  1194 


NEGLIGENCE. 


2100 


i» 


pany  —  e.  g.,  in  loading  or  unloading  freight  —  has  a 
right  to  occupy  a  position  designated  by  the  company's 
agent,  liazardous  though  it  may  be,  relying  upon  the 
company's  diligence  to  protect  him  in  such  position.^ 

Illustrations. — The  plaintiff  had,  by  contract  with  a  rail- 
road company,  the  right  to  a  certain  portion  of  their  track  for 
loading  his  freight,  and  while  so  engaged,  the  servants  of 
another  company,  which,  by  the  sufferance  of  the  company 
owning  the  track,  was  allowed  to  run  its  cars  on  the  track  where 
plaintiff  was  ''^  when  nothing  icas  in  the  tt;a2/,'' backed  their  cars 
againbt  the  car  in  which  plaintiff  was  standing,  and  injured 
him.  ITcJd,  that  the  plaintiff'  had  a  positive  and  exclusive  right, 
as  against  the  defendant  company,  to  be  on  the  track  where  he 
was,  and  that,  even  though  the  servants  of  defendant  gave  the 
usual  signals  that  their  train  was  about  to  move  upon  this 
side-track,  as  there  was  ample  room  for  both,  the  plaintiff  had 
a  right  to  presume  that  their  train  would  move  no  farther  up 
the  track  than  it  lawfully  might :  New  Orleans  etc.  R.  R.  Co, 
V.  Baileij,  40  Miss,  395.  Plaintiff,  with  two  other  persons, 
was  engaged  in  repairing  the  track  of  a  railroad.  A  freight 
train  was  backing  towards  them,  but  they  did  not  preceive  it; 
when  nearly  upon  them  they  were  aroused  by  the  shouts  of  the 
brakcman,  and  jumped  from  the  track  they  were  working  on 
to  an  adjoining  one,  and  waited  for  the  train  to  pass.  At  the 
same  time  the  cars  had  been  uncoupled  from  another  train, 
and,  moving  by  their  own  momentum  along  the  track  upon 
which  the  plaintiff  was  standing,  ran  over  and  injured  him. 
No  person  was  on  the  uncoupled  cars  to  give  warning  of  their 
approach,  and  they  were  not  seen  by  the  plaintiff  until  he  was 
struck.  Held,  that  the  railroad  was  liable:  Chicago  etc.  R.  R. 
Co.  V.  Dignan,  56  111.  487. 

§  1194.    Persons  on  Track  by  License  or  Custom.— 

Where  it  appears  that  the  track  of  a  railroad  companj' 
has  been  used  for  purposes  of  travel  by  pedestrians,  with 
the  permission,  express  or  implied,  of  the  company,  such 
circumstance  enhances  the  duty  of  servants  of  the  c(  rpo- 
ration  to  exercise  caution  and  prudence  in  the  operation 
of  their  road  at  this  place.''  If  the  public,  with  the  knowl- 

Detroit  etc.  Co.,  31  Mich.  274;  Good-  '  lUinoia  etc.  R.  R.  Co.  v.  Hatntner, 

fellow  V.  R.  R.  Co.,  106  Mass.  461;  72  111.   347;  Murphy  w.  R.  R.  Co.,  45 

Schultz  I!.  R.  R.  Co.,  44  Wis.  638.  Iowa,  661;  38  Iowa,  539;  Harty  r.  R. 

» Newsouw.  R.  R.  Ca,  29  N.  Y.  383.  R.  Co.,  42  N.  Y.  468j  Brown  v.  K.  R 


2101 


INJURIES    BY   RAILROADS. 


1194 


edge  and  acqniscence  of  a  railroad  company,  have  been 
long  and  constantly  accustomed  to  walk  upon  its  track, 
although  it  is  a  statutory  offense  to  walk  upon  a  railroad 
track,  it  amounts  to  a  license,  and  the  company  is  liable 
to  one  injured  while  so  walking,  by  the  negligent  act  or 
omission  of  its  servants/  But  some  cases  hold  that  the 
railroad  owes  no  more  duty  towards  bare  licensees  than  it 
docs  towards  trespassers.'* 

Illustrations.  —  The  direct  and  usual  path  to  a  railroad 
depot  is  over  a  switch  on  which  freight-cars  frequently  sAand 
with  an  opening  habitually  left  between  them  so  as  to  leave  the 
patli  unobstructed.  This  path  is  constantly  used  by  persons 
getting  off  and  on  at  the  depot,  without  such  use  being  at  any 
time  discountenanced  by  the  company  or  its  officials,  to  whom 
it  is  known.  Held,  that  if  a  person  in  passing  between  the  cars 
is  injured  by  the  cars  being  suddenly  and  without  warning 
run  together,  the  company  is  liable  in  damages  for  the  injury: 
Xidols  V.  R.  R.  Co.,  83  Va.  99;  5  Am.  St.  Rep.  257.  A  man 
walking  on  a  path  near  the  track,  and  on  the  right  of  way  of  the 
raih'oad,  was  injured  by  being  hit  by  a  cow,  which,  being  on  the 
tracii,  was  struck  by  the  train,  and  thrown  in  the  air.  Held,  that 
the  railroad  was  liable:  Alabama  etc.  R.  R.  Co.  v.  Chapman,  83 
Ala.  453. 


Co.,  50  Mo.  461;  11  Am.  Rop.  420; 

Kansas  etc.  R.  R.  Co.  v.  Pointer,  9 
Kan.  G'20;  14  Kaa.  .38;  Kay  v.  R.  R. 
Co.,  G5  Pa.  St.  2(59;  3  Am.  Rep.  028; 
r  nusylvania  R.  R.  Co.  v.  Lewis, 
79  t'a.'St.  33;  Daley  v.  R.  R.  Co.,  26 
Conu.  50J ;  68  Am.  Dec.  413;  Slattery 
V.  R.  R.  Co.,  3  App.  Cas.  1155;  Davis 
V.  R.  R.  Co.,  58  Wis.  646;  46  Am. 
Rep.  01)7;  Barry  v.  R.  R.  Co.,  92  N. 
Y.  289;  44  Am.  Rep.  377;  Taylor  v. 
R,  U.  Co.,  113  Pa.  St.  162;  57  Am. 
Rep.  44(i;  Dublin  etc.  R.  R.  Co.  v. 
Slattery,  3  App.  Cas.  1155;  Byrne  v. 
R,  R.  Co.,  104  N.  Y.  362;  58  Am. 
Rep.  512;  Wright  v.  R.  R.  Co.,  142 
Mass.  296;  Kansas  Pacific  R.  R.  Co. 
V.  Ward,  4  Col.  30;  Harriman  v.  R. 
R.C  ,  45  Ohio  St.  11;  4  Am.  St.  Rep. 
Bit".  As  to  injuries  to  passengers  on 
plattoritis  and  tracks,  see  Bailments 
—Carriers. 

'  Davis  V.  R.  R.  Co.,  58  Wis.  646; 
4G  Am.  Rep.  667;  Townley  v.  R.  R. 


Co.,  53  Wis.  626;  Western  etc.  R.  R. 
Co.  V.  Meigs,  74  Ga.  857;  Barry  v.  R. 
R.  Co.,  92  N.  Y.  289;  44  Am.  Rep. 
377;  McDermott  v.  R.  R.  Co.,  28  Hun, 
325 

^Gaynor  v.  R.  R.  Co.,  100  Mass. 
208;  97  Am.  Dec.  96;  Illinois  etc.  R. 
R.  Co.  w.  Hctherington,  S3  111.510; 
Jeffersonville  etc.  R.  R.  Co.  /•.  Gold- 
smith, 47  Ind.  43;  B'inlayson  v.  II.  R. 
Co.,  1  Dill.  579;  Bancroft  v.  R.  R.  Co., 
97  Mass.  276;  Illinois  etc.  R.  11.  Co. 
V.  Godfrey,  71  111.  500;  22  Am.  Rep. 
112;  Galena  etc.  R.  R.  Co.  v.  Jacobs, 
20  111.  478;  Pennsylvania  etc.  R.  R. 
Co.  V.  Lewis,  79  Pa.  St.  33;  Sutton  v. 
R.  R.  Co.,  4  Hun,  760;  66  N.  Y.  243; 
O'Donnell  v.  R.  R.  Co.,  7  Mo.  App. 
190;  Hoover  v.  R.  R.  Co.,  61  Tex. 
503;  Baltimore  etc.  R.  R.  Co.  v.  State, 
62  Md.  479;  50  Am.  Dec.  233;  Phila- 
delphia etc.  R.  R.  Co,  V.  Huramcll,  44 
Pa.  St.  375. 


§  1195 


NEGLIGENCE. 


2102 


CHAPTER  LXII. 


CONTRIBUTORY  NEGLIGENCR 

§  1195.  Contributory  negligence  of  plaintiff  a  bar. 

§1106.  Damage  not  apportioned. 

§  1197.  Requisites  of  contributory  negligence  —  Want  of  ordinary  care. 

§  1198.  Must  be  proximate  cause  of  injury. 

§  1199.  Where  defendant's  act  willful  or  wanton. 

§  1200.  What  not  contributory  negligence  —  Failing  to  anticipate  another's 

fault  or  wrongful  act. 

§  1201.  Plaintiff's  want  of  care  produced  by  defendant's  wrong, 

§  1202.  Intoxication. 

§  1203.  Acting  erroneously  through  sudden  fear. 

§  1204.  Endeavoring  to  save  life  of  another. 

§1205.  Rule  of  "comparative  negligence" — Illinois  —  Georgia  —  Kansas. 

§  120G.  Rule  where  plaintiff  a  law-breaker. 

§  1207.  Rule  where  plaintiff  a  trespasser. 

§  1208.  Contributory  negligence  of  children  and  persons  non  mi  juris . 

§  1209.  Injury  to  trespassing  children. 

§  1210.  Imputed  negligence  of  parents  and  guardians. 

§  1211.  Imputed  negligence  in  other  cases. 

§  1212.  Burden  of  proof  of  contributory  negligence. 

§  1195.  Contributory  Negligence  of  Plaintiff  a  Bar.  - 
If  the  plaintiff  or  party  injured,  by  the  exercise  of  oidi. 
nary  care  under  the  circumstances,  might  have  avoided 
the  consequences  of  the  defendant's  negligence,  but  diJ 
not,  the  case  is  one  of  mutual  fault,  and  the  law  will  neither 
cast  all  the  consequences  upon  the  defendant,  nor  will  it 
attempt  any  apportionment  thereof.  If  both  parties  were 
in  fault,  the  plaintiff  cannot  recover  damages,  for  "  the 
law  has  no  scales  to  determine,  in  such  cases,  whose  wioii:,^- 
doing  weighed  most  in  the  compound  that  occasioned  the 
mischief."* 


'  Little  Schuylkill  etc.  R.  R.  Qo.'v. 
Norton,  24  Pa.  St.  469;  64  Am.  Dec. 
©7.3;  Tuff  u  Warman,  5  Com.  B.,  N.  S., 
585;  Davies  v.  Mann,  10  Mees.  &  W. 
545;  Simpson  v.  Hand,  G  Whart.  311; 
36  Am.  Dec.  231;  Butterfield  v.  For- 
rester, 11  East,  60;  Forks  Township  v. 
King,  84  Pa.  St.  230;  Nor.  Cent.  R.  B. 


Co.  V.  Price,  29  Md.  420;  Freeh  r.R.  R. 
Co.,  39  Md.  574;  Lewis  v.  R.  K,  Co.,  ;;S 
Md.  588;  17  Am.  Rep.  521;  Faitimoro 
etc.  R.  R.  Co.  V.  Mulligan,  45  Md.  4SG; 
Trow  V.  R.  R.  Co.,  24  Vt.  487;  5S  Am. 
Dec.  191;  Needham  v.  R.  R.  Co.,;); 
Cal.  469;  Hearne  v.  R.  R.  Co.,  50  CA 
482;  Barnes  v.  Cole,  21  Weud.  Hi; 


2103 


CONTMBUTOPwY   NEGLIGENCE. 


§1195 


ite  another's 


"  The  reason  why,  in  cases  of  mutual  concurring  negli- 
gence, neither  party  can  maintain  an  action  against  the 
other  is  not  that  the  wrong  of  the  one  is  set  off  against 
the  wrong  of  the  other;  it  is  that  the  law  cannot  measure 
how  much  the  damage  suffered  is  attributable  to  the  plain- 
iiff's  own  fault.  If  he  wore  allowed  to  recover,  it  might 
bo  that  ho  would  obtain  from  the  other  party  compensa- 
tion for  his  own  misconduct.  It  is  obvious,  then,  that  it 
can  make  no  diflference  against  whom  his  fault  was  pri- 
marily committed.     If  ho  has  suffered  in  consequence  of 


Johnson  v.  R.  R.  Co.,  20  N,  Y.  65;  75 
Am.  Dec.  375;  Gray  v.  R.  R.  Co.,  65 
N.  Y.  501;  Stevea  v.  R.  R.  Co.,  18 
N.  Y.  422;  Dufer  v.  Cully,  3  Or.  377; 
Lucas  V.  R.  R.  Co.,  0  Gray,  64;  60 
Am.  Dec.  406;  Smith  v.  Smith,  2  Pick. 
021;  13  Am.  Dec.  464;  Farnum  v. 
Concord,  2  N.  H.  392;  Murch  v.  R.  R. 
Co.,  29  N.  H.  9;  61  Am.  Dec.  631; 
State  V.  R.  R.  Co.,  52  N.  H.  528; 
Moore  v.  R.  R.  Co.,  24  N.  J.  L.  268; 
Central  R.  R.  Co.  v.  Moore,  24  N.  J.  L. 
824;  Telfcr  v.  R.  R.  Co.,  30  N.  J.  L. 
18S;  Central  R.  R.  Co.  v.  Van  Horn,  38 
N.  J.  L.  1.38;  Garmon W.Bangor,  38  Me. 
443;  Timmona  v.  R.  R.  Co.,  6  Ohio  St. 
105;  Cleveland  etc.  R.  R.  Co.  v.  Terry, 
8  Ohio  St.  570;  Sandusky  etc.  R.  R. 
Co.  V.  Sloan,  27  Ohio  St.  341;  Williams 
V.  R.  R.  Co.,  2  Mich.  259;  55  Am.  Dec. 
59;  Lake  Shore  etc.  R.  R.  Co.  v.  Mil- 
ler, 25  Mich.  274;  Mich.  Cent.  R.  R. 
Co.  V.  Campau,  35  Mich.  468;  New 
Haven  etc.  R.  R.  Co.  v,  Vander- 
bilt,  10  Conn.  420;  Birge  v.  Gardner, 
19  Conn.  507;  50  Am.  Dec.  201;  Beera 
v.R.  R.  Co.,  19  Conn.  566;  Park  v. 
O'Brien,  23  Conn.  339;  Jackson  v. 
Commissionera  etc.,  76  N.  C.  282; 
Donaldson  v.  R.  R.  Co.,  21  Minn.  293; 
Brown  v.  R.  R.  Co.,  22  Minn.  165; 
Erd  V.  St.  Paul,  22  Minn.  443;  New 
Orleans  etc.  R.  R.  Co.  v.  Hughes,  49 
Miss.  258;  Memphis  etc.  R.  R.  Co.  v. 
Thomas,  61  Miss.  637;  Paducah  etc. 
R.  R.  Co.  V.  Hoehl,  12  Bush,  41; 
Koutz  V.  R.  R.  Co.,  54  Ind.  515; 
Johnson  v.  R.  R.  Co.,  27  La.  Ann.  53; 
Knight  V.  R.  R.  Co.,  23  La.  Ann.  462; 
Laiclier  v.  R.  R.  Co.,  28  La.  Ann.  320; 
Coombs  V.  Parrington,  42  Me.  332; 


Munger  v.  R.  R.  Co.,  4  N.  Y.  349;  53 
Am.  Dec.  384;  Thrings  v.  R.  R.  Co., 
7  Robt.  616;  Morris  v.  Phelps,  2  Hilt. 
38;  Collins  u.  R.  R.  Co.,  12  Barb.  492; 
Johnson  v.  R.  R.  Co.,  20  N.  Y.  73;  75 
Am.  Dec.  375;  Wilds  v.  R.  R.  Co.,  24 
N.  Y.  430;  Murphy  v.  Deane,  101 
Mass.  455;  3  Am.  Rep.  390;  Monon- 
gahela  City  «.  Fischer,  111  Pa.  St.  9; 
56  Am.  Rep.  241;  Bush  v.  Brainard, 
1  Cow.  78;  13  Am.  Dec.  513;  Wash- 
burn V.  Tracy,  2  D.  Chip.  128;  15  Am. 
Dec.  661;  Fleytaa  v.  R.  R.  Co.,  18  La. 
33'J;  36  Am.  Dec.  658;  Brown  v.  Max- 
well, 0  Hill,  592;  41  Am.  Dec.  771; 
Irwin  V.  Sprigg,  6  Gill,  200;  40  Am. 
Dec.  667;  Beatty  v.  Gilmorc,  16  Pa. 
St.  463;  55  Am.  Dec.  514;  Reeves  v. 
R.  R.  Co.,  30  Pa.  St.  454;  72  Am.  Dec. 
713;  Chapman  v.  R.  R.  Co.,  19  N.  Y. 
341;  75  Am.  Dec.  344;  Milwaukee 
etc.  R.  R.  Co.  V.  Hunter,  11  Wis.  160; 
78  Am.  Dec.  699;  Chicago  etc.  R.  R. 
Co.  V.  Dewey,  26  111.  255;  79  Am.  Dec. 
374;  Heil  v.  Glanding,  42  Pa.  St.  493; 
82  Am.  Dec.  537;  State  v.  R.  R.  Co., 
24  Md.  84;  87  Am.  Dec.  600;  Balti- 
more  etc.  R.  R.  Co.  v.  Breinig,  25  Md. 
378;  90  Am.  Doc.  49;  Boisiegel  v. 
R.  R.  Co.,  34  N.  Y.  622;  90  Am.  Dec. 
741;  Indianapolis  etc.  R.  R.  Co.  v. 
Rutherford,  29  Ind.  82;  92  Am.  Dec. 
330;  Baltimore  etc.  R.  R.  Co.  v.  State, 
29  Md.  252;  90  Am.  Dec.  528;  North 
Cent.  R.  R.  Co.  v.  State,  31  Md.  .357; 
100  Am.  Dec.  69;  Griggs  v.  Flecken- 
stein,  14  Minn.  81;  100  Am.  Dec.  199; 
Penn.  R.  R.  Co.  v.  Righter,  42  N.  J. 
L.  180;  Zimmerman  v.  R.  R.  Co.,  71 
Mo.  476;  Wood  v.  Jones,  34  La.  Ann. 
1086. 


§1195 


NEGLIGENCE. 


2104 


his  own  fault,  the  law  gives  him  no  remerly." '  Thus 
whore  one  in  leaving  a  ferry-boat  puts  himself  la  sodciise 
a  crowd  that  ho  cannot  see  to  liis  footing,  and  gets  his  foot 
crushed,  he  is  guilty  of  contributory  negligence;^  so  is 
one  who  stands  so  near  the  edge  of  a  wharf  as  to  bolikolv 
to  be  forced  off  by  passing  teams ;^  so  is  one  who  loaves 
his  horse  and  wagon  in  a  similar  position;*  so  is  one 
who  walks  with  his  eyes  open  into  an  unguarded  hole;* 
so  is  a  servant  who  used  tools  he  knows  to  be  defective." 
So  no  action  can  be  maintained  by  an  administrator  for 
the  death  of  his  intestate  caused  by  intoxicating  liquor 
sold  him  by  the  defendant;''  nor  by  a  wife  in  a  similar 
case,  where  '  knows  that  her  husband  has  purchased  a 
jug  of  wl.)  .     1  is  drinking  immoderately,  and  has  it 

in  her  power  to  prevent  him,  by  breaking  the  jug,  or  pour- 
ing out  it?  ontents,  and  is  not  prevented  from  doing  so 
through  fear,  bL^L  pei.uits  him  to  use  it  in  great  excess.' 
Where  a  person  returns  to  the  owner  a  gun  which  he  has 
heavily  loaded,  for  the  purpose  of  having  the  latter  kicked 
by  its  discharge,  and  such  owner  finds  out  its  condition, 
but  nevertheless  discharges  it,  the  act  of  the  borrower  is 
not  the  proximate  cause  of  the  injury  resulting  to  the 
owner  from  such  discharge,®  The  same  degree  of  care  is 
required  of  a  woman  as  of  a  man.^"  A  special  statute  reliev- 
ing a  contractor  from  all  liability  to  the  government  will 
not  be  adjudged  to  relieve  him  from  the  legal  effect  of  his 
own  negligence  when  he  is  seeking  damages." 

Illustrations. — The  plaintiff  left  for  several  months  a 
loaded  gun,  resembling  a  walking-cane,  in  her  yard.  It  was 
taken  up  by  the  servant  (slave)  of  the  defendant,  a  boy  al)out 
fourteen  years  old,  in  whose  hands  it  went  off,  and  killed  the 


'  Heil  V.  Glanding,  42  Pa.  St.  493. 
•i  Dwyer  v.  R.  R.  Co.,  47  N.  J.  L.  9. 
'  Cunningham  v.    Lyness,   22  Wis. 
245. 

*  Morris  v.  Phelps.  2  Hilt.  38, 

*  Taylor  v.  Carew  Mfg  Co.,  143  Mass. 
470. 

«  Marsh  v.Chickering,  101  N.Y.  396. 


'  King  V.  Henkie,  80  Ala.  505;  60 
Am.  Rep.  119, 

"Reset  V.  Bell,  77111.  59.3. 

»  Smith  V.  Thomas,  23  Ind.  69. 

"Hassenyer  v.  R.  R.  Co.,  48  Mich. 
205;  42  Am.  Rep.  470. 

'^  Henegan  v.  United  States,  17  Ct. 
of  Ci.  273. 


2105 


CONTRIBUTORY    NEGLIGENCE. 


§  1195 


plaintiff's  slave.     Held,   that  the   negligence  of  the   plaintiff 
precluded  her  from  recovering  damages:  Ai(Aliffe  y.  GaiUard,8 
la.  Ann.  71.     A  railroad  section-iiand  froze  his  feet,  when  by 
kcci)ing  in  motion  or  going  to  a  fire  provided  he  might  have 
avoidod  it.     Held,  that  he  had  no  right  of  action  against  the 
railroad  company  employing  him:  Farmer  v.   R.  R.    Co.,   67 
Iowa,  136.     A  undertook  to  pull  outward  a  sliding  door  of  a 
freight-car,  to  which  he  had  a  right  of  access,  and  it  fell  on 
hiai.    Held,  that  he  had  no  right  of  action  against  the  railroad 
company:  Kleimenhagen  v.  R.  R.  Co.,  65  Wis.  66.     B  left  his 
liorso  standing  in  a  passage-way  from  a  street  to  a  ferry  while 
he  went  into  a  urinal.     The  horse  took  fright,  ran  down  the 
passage,  and  into  the  river,  the  chain  being  up,  and  not  down 
as  it  sliould  have  been.     Held,  that  B's  negligence  precluded 
hi?  recovery  from  the  ferry  company :  Hohoken  Land  and  Improve- 
incnt  Co.  v.  Latiij,  48  N.  J.   L.  604.     A  had   supervised   the 
placing  of  a  telegraph-pole  four  or  five  feet  into  the  earth,  and 
knew  of  a  subsequent  grading  down,  leaving  it  only  a  foot 
therein.  Held,  to  be  guilty  of  contributory  negligence  in  climbing 
it  with  spikes  to  detach  the  wires:  Matthews  \.  St.  Louis  Grain 
Elevator  Co.,  59  Mo.  474.     A  photographer  ordered  of  a  dealer  a 
quantity  of  hyposulphate  of  soda.    The  dealer,  by  mistake,  gave 
him  .sulphate  of  iron.     His  servant  put  some  of  it  in  a  solution 
and  spoiled  a  number  of  pictures.     Very  slight  attention  would 
have  shown  the  servant  that  it  was  not  what  had  been  ordered. 
Ildd,  that  the  master  could  not  recover  damages:    Van  Lien  v. 
Smlllc  Manufacturing  Co.,  14  Abb.  Pr.,  N.  fe.,  74.     In  his  cellar 
a  merchant  kept  three  jars  of  a  liquid  used  in  cleaning  silver. 
Two  of  the  jars  contained  water,  and  the  third  cyanite  of  po- 
tassium.   The  last  jar  was  labeled  poison,  and  had  on  it  a 
gkull  and  cross-bones.    A  workman,  employed  by  the  owner  of 
the  building  in  making  repairs,drank  of  the  latter  jar,  believing 
it  to  1)0  water,  and  died  from  the  effect  of  the  poison.     Held, 
that  the  plaintiff  could  not  recover:  Callahan  v.  Warne,  40  Mo. 
131.    Plaintiff  stepped  into  an  elevator  opening  on  a  ground 
floor  and  was  injured  by  the  descending  elevator.     He  was  fa- 
miliar with  the  premises,  and  should  have  observed  that  the 
opening  was  not  a  door,  as  he  supposed.     Held,  that  his  negli- 
gence precluded  his  right  of  action:  Hutchins  v.  Priestly  Ex- 
'pms  Wagon  etc.  Co.,  61  Mich.  252.     A,  going  to  the  warehouse 
of  a  railroad  company  after  goods,  stops  his  wagon  on  the  track 
I  nearest  the  platform,  and  next  to  the  main  track,  over  which 
the  mail  train  passes,  and  so  near  there  as  to  be  in  the  way  of 
[the engine.     The  train  comes  along  and  damages  A's  wagon. 
Hdd,  that  A   has  been  guilty  of  contributory  negligence,  and 
cannot  recover  damages  of  the  company:  Murphy  v.  R.  R.  Co., 
<0  N.  C.  437.    The  driver  of  a  carriage  suffers  his  team  to  stand 


§U96 


KEQIilGENCE. 


210S 


unhitched  near  a  railway  track,  he  at  the  same  time  standing 
near  the  door  of  the  carriage,  without  the  reins  in  his  handj; 
reading  a  newspaper.    An  engine  comes  along,  driving  a  snow- 
plow,  which  throws  mud  into  the  carriage  and  frightens  tht- 
horses,  causing  them  to  run  away.     Held,  that  the   ncgli},'eiif  e 
of  the  driver  bars  an  action  for  damages  on  the  part  of  tlie 
owner  of  the  carriage:  Gray  v.  R.  R.  Co.,  2  Jones  &  S.  5lij. 
The  servant  of  the  plaintiff  drove  the  plaintiff's  team  to  the  do- 
fendant's  warehouse  and  wharf,  and  hitched  the  horses  to  a  clof, 
but  wound  his  lines  round  the  hub  of  his  wagon,  so  that  wIk  ri 
the  horses  backed  the  lines  became  shortened,  by  which  means 
the  horses  were  caused  to  back  into  the  river,  where  they  mck- 
drowned,  and  the  wagon  and    harness  lost.      Held,  that  the 
plaintiff  could  not  recover  damages  of  the  defendant  for  failing 
to  provide  his  premises  with  hitching-posts,  on  account  of  the 
contributory  negligence  of  his  servant:  Buckingham  v.  Fiahcr. 
70  111.  121.     A  suffers  his  horse  to  run  at  large  in  violation  of 
law,  knowing  that  there  is  a  dangerous  excavation  in  an  unused 
street  of  the  city,  which  the  city  has  suffered  to  remain  witliout 
being  filled  up.     The  horse  falls  into  the  excavation  and  is 
killed.     Held,  that  A  cannot  recover  damages  of  the  city:  Grih- 
hie  V.  Sioux  City,  38  Iowa,  390.    The  building  of  A  has  a  project- 
ing roof,  which  casts  water  upon  the  land  of  B.    This  water  so 
weakens  the  wall  of  B's  house  that  it  falls,  and  in  falling  injureg 
the  building  of  A.    A's  tenant  cannot  recover  damages  of  B; 
for  this  injury  was  the  result  of  his  own  contributory  negli- 
gence in  suffering  the  building  of  which  he   was   tenant  to 
remain  in  a  condition  to  produce  such  an  injury  to  B's  building: 
Martin  v.  Simpson,  6  Allen,  102.     A  boiler-maker  was  sent  bv 
his  employer  to  repair  the  boiler  in  a  manufacturing  establish- 
ment.    He  directed  the  closing  of  a  ventilator  attached  to  the 
boiler.     This  produced  an  accumulation  of  foul  air,  which  on 
his  return  from  his  dinner  caused  his  death.     Held,  that  his 
negligence    barred  a    recovery:   Curran  v.    Warren   Chemical 
V/orks,  36  N.  Y.  153. 

§  1196.    Contributory  Negligfence  is  a  Bar  —  Damage] 
not  Apportioned.  —  Unlike  the  rule  in  admiralty,  where, in 
cases  of  collision,  if  both  vessels  are  in  fault,  the  loss  is 
equally  divided  between  the  owners  of  each  or  in  suits  for  | 
personal  injuries,^ — in  courts  of  law,  where  contributory 
negligence  exists,the  loss  is  never  apportioned:  it  is  a  bar- 1 
a  complete  defense  —  to  the  action,  and  is  not  taken  into 


^  The  Max  Morria,  24  Fed.  Rep.  860. 


2106  I  2107 


CONTEIBUTORY  NEOLIQENCB. 


§  1197 


account  in  mitigation  of  damages.*  But  this  principle 
docs  not  apply  where  the  injury  produced  by  the  plain- 
tiff's negligence  is  capable  of  a  distinct  separation  and 
apportionment  from  that  produced  by  the  defendant's 
negligence.  Here  it  should  be  excluded  by  the  jury  in 
estimating  the  damages,  and  they  may  assess  against  the 
defendant  those  damages  which  flowed  separately  from 
his  act.'^  So  where  each  party  by  his  negligence  actively 
contributes  to  the  injury  at  the  time  of  its  commission 
there  can  be  no  recovery;  but  if  there  is  a  mere  passive 
fault  or  negligence  on  the  part  of  the  plaintiff,  he  may 
recover,  if  the  defendant  fails  to  exercise  ordinary  care 
and  prudence  in  order  to  avoid  doing  him  a  wrong.*  And 
defendant  may  introduce  evidence  to  prove  contributory 
negligence  of  plaintiff  for  the  purpose  of  reducing  the 
damages  to  a  nominal  sum,  upon  a  hearing  in  damages 
after  the  overruling  of  tho  defendant's  demurrer  to  a  dec- 
laration charging  an  injury  by  his  negligence.* 

§  1197.  Requisites  of  Contributory  Negligence — ^Want 
of  Ordinary  Care.  —  It  is  not  any  slight  negligence  con- 
tributory to  the  injury  which  will  prevent  the  plaintiff 
from  recovering  damages  for  a  negligent  injury  caused 
by  another."  The  plaintiff  is  barred  from  recovering 
damages  only  where  the  injury  could  have  been  avoided 
by  the  exercise   of  ordinary  or  reasonable  care  on  his 


'Thompson  on  Negligence,  1162; 
Cooley  on  Torts,  674.  But  see  contra, 
Wright  V.  R.  R.  Co.,  20  Iowa,  195; 
Nasliville  etc.  R.  R.  Co.  v.  Smith,  6 
Heisl;.  174;  Flanders  v.  Meath,  27 
Ga.  358;  Atlanta  etc.  R.  R.  Co.  v. 
Ayers,  53  Ga.  12;  Dush  v.  Fitzhugh, 
2  Lea,  307;  Atlanta  etc.  R.  R.  Co.  v. 
Wyly,  65  Ga.  120. 

''  Thomas  v.  Kenyon,  1  Daly,  132. 

'  Adams  v.  Ferry  Co.,  27  Mo.  95; 
72  Am.  Dec.  247. 

♦Daily  v.  R.  R.  Co.,  32  Conn.  356; 
87  Am.  Dec.  176. 

*  Mabley  v.  Kittleberger,  37  Mich. 


360;  Daniels  v.  Clegg,  28  Mich.  32; 
Galena  etc.  R.  R.  Co.  v.  Jacobs,  20 
111.478;  Cremerw.  Portland.  36  Wis. 
92.  "  It  is  not  tho  law  that  slight  neg- 
ligence on  the  part  of  the  plaintiff 
will  defeat  the  action.  Slight  negli- 
gence is  the  want  of  extraordinary  care 
and  prudence;  and  the  law  does  not 
require  of  a  person  injured  by  the 
carelessness  of  others  the  exercise  of 
that  high  degree  of  caution  as  a  con- 
dition precedent  to  his  right  to  recover 
damages  for  the  injuries  thus  sus- 
tained": Cremer  v.  R.  R.  Co.,  36  Wis. 
02. 


'™'**"'»lll«H«l 


§1198 


NEGLIGENCE. 


part.'  The  want  of  a  superior  dogroe  of  caro  or  dlli^'cnoo 
cannot  bo  sot  up  as  a  bar  to  tlio  action.'^  Tho  pluiutiir,  i, 
show  that  ho  was  not  negligent,  may  show  tliat  he  did 
as  men  usually  do  in  like  circumstances.^ 

§  1198.    Must  have  been  Proximate  Cause  of  Injury, 

—  The  negligence  of  tho  plaintilf,  in  order  to  bar  a  rccoy. 
ery,  must  have  been  a  proximate  cause  of  tho  injury  ((ini. 
plained  of.'  If  tho  negligence  of  tho  plaintiff  avus  oidy 
remotely  connected  with  the  injury,  the  plaintiff  niiiy  ro- 
cover  damages,  if  notwithstanding  such  remote  negli^cnco 
of  the  plaintiff  tho  defendant  ought  to  have  avoided  iho 
injury  by  ordinary  care.®  But  if  a  want  of  ordiiiiuy 
care  on  the  part  of  tho  person  injured  concurs  as  a  prox- 
imate  cause  in  producing  the  injury,  the  defendant  i^  not 
liable,  although  in  fault." 


1  Brown  v.  R.  R.  Oa,  22  Minn.  1G5; 

Cox  r.  Westchester  Turnpike  Road, 
33  Baib.  414;  Baxter  v.  R.  R.  Co., 
3  Rob.  (N.  Y.)  niO;  Jacobs  v.  Duke,  1 
E.  D.  Siiiith,  271;  O'Brien  v.  R.  R. 
Co.,  3  Philii.  715;  Naslivillo  etc.  R.  R. 
Co.  V.  Carroll,  (5  Huisk.  347;  Cremer 
r.  rortluul,  m  Wis.  92,  99;  Marble  v. 
Ross,  124  Mass.  44;  Oliio  etc.  R.  R. 
Co.  r.  Oriillott,  15  liul.  4S7;  Springett 
V.  Ball,  4  Post.  &  F.  472;  Irwiu  v. 
Sprigi,',  G  Gill,  200;  4(JAin.  Dec.  607; 
Cronuiieliii  »-.  Co.\e,  30  Ala.  318,  329; 
68  Am.  Dec.  120;  Williama?;.  Clinton, 
28  Coim.  2tJ(i;  Fox  v.  Glastenbury,  29 
C(  un.  204;  Biigo  v.  Gardiner,  19 
Conn.  507;  50  Aiu.  Dec.  261;  Daley 
V.  R.  R.  Co.,  2(5  Conn.  591;  68  Am. 
Dec.  413;  Cleveland  etc.  R.  R.  Co.  v. 
Crawford,  24  Ohio  St.  631 ;  15  Am.  Rep. 
6.33;  2  Am.  L.  T.,  N.  S.,  211;  Indian- 
apolis etc.  R.  R.  V.  Stout,  53Ind.  143, 
149;  Muldowney  v.  R.  R.  Co.,  39 Iowa, 
615;  Little  i\  McGuire,  43  Iowa,  447; 
38  Iowa,  5<5'2;  Kansas  Pacific  R.  R. 
Co.  V.  Tointer,  14  Kan.  37;  9  Kan. 
620;  Sullivan  v.  Louisville  Bridge  Co., 
9  Bush,  81. 

■■'  Whirley    v.  Whiteman,   1   Head, 
610. 


MVhitsett  V. 
150. 


R.  R.  Co.,  67  Iowa, 


Thompson   on  Negligence,    1151; 


TxiSv.  Wannan,  2  Com.  B.,  N.  S.,  Tw- 
5  Com.  B.,  N.  S.,  573;  State  r.  l;.  ];' 
Co.,  52N.  H.  528;  Foster  /-.  Ib.llv,  .'W 
Ala.  70,  85;  Flynn?\  R.  R.  Co.,  niril, 
14;  G  Am.  Rep.  595;  Needham  r.  IL  ][. 
Co.,  37  Cal.  409;  Klinoi;.  R.  K.  t„.,:j- 
Cal.  400;  39  Cal.  587;  99  Am.  Due, 
2S2;  Isbell  v.  R.  11.  Co.  27  Conn.  DiCi; 
71  Am.  Dec.  78;  Churchill  /•.  Kmc. 
bock,  15  Conn.  359;  Dyer  v.  'I'.il .Dtt, 
10  111.  300;  Northern  Coiitr.d  I!,  i;, 
Co.  V.  Price,  29  Md.  420;  Me\ cr ,:  [[. 
R.  Co.,  43  Mo.  523;  Walsh  /•";  Mi  .is. 
sippi  Traus.  Co.,  52  Mo.  434;  W  liakii 
V.  R.  R.  Co.,  GO  Mo.  323;  Laimcii  -■. 
Albany  Gas-light  Co.,  44  N.  V.  4.V.I; 
Byram  i'.  McGuire,  3  lliud,  ,"):iO; 
Uuion  Pacific  11.  R.  Co.  ?'.  IlolliiH, ') 
Kan.  107;  Caulkius  v.  Malluw,-!,  5 
Kan.  191;  Sawyer  v.  Sauer,  10  Kan. 
40(5;  Cummins  v.  Presley,  4  llair. 
(Del.)  315.  And  see  ante,  Pri).\im,ito 
and  Remote  Cause. 

^  TaSv.  Warman,  2  Com.  15.,  N.  S., 
740;  Day  r.  Grossman,  4  Thoiiip.  &  C, 
122;  Doggett  v.  R.  R.  Co.,  7s  X.  V. 
305;  State  v.  R.  R.  Co.  52  N.  H.  .VJ!). 

«  Robinson  v.  R.  R.  Co.,  48 !  'al.4(i|i; 
Ilearno  v.  R.  R.  Co.,  50  Cal.  4>l';  WA- 
liams  V.  Clinton,  28  Conn.  200;  McAti- 
nich  ■('.  R.  R.  Co.,  20  Iowa,  lii'-S,  ;i4i); 
Spencer  v.  R.  R.  Co.,  29  Iowa,  ^''<:  -Vitz 
v.  R.  R.  Co.,  38  Iowa,  293;  ScLuabsi', 


2108  ■•:ioi) 


CONTRinUTOUY   NEGLIGENCE.      §§  1100,  1200 


.^  1199.    Where  Defendant's  Act  is  Willful  or  Reckless. 

-  \\'hcro  tho  conduct  of  llio  defendant  is  wanton  and 
willl'i'.l.or  where  it  indicates  a  reckless  indifferenco  to  the 
ii;;lits  of  others,  tho  doctrine  of  contributory  negligenco 
(lois  not  apply,  and  the  defendant  is  responsible  for  tho 
iiiiuiy  he  inllicts,  irrespective  of  tho  fault  which  placed 
the  iilaintilF  in  the  way  of  such  injury.*  Where  the  do- 
iiudiint  discovers  the  negligence  of  tho  plaintiff  in  time, 
by  llio  use  of  ordinary  care,  to  prevent  tho  injury,  and 
(Iocs  not  make  use  of  such  caro  for  the  purpose,  he  is 
cluiigoablo  with  reckless  injury,  and  c  anot  rely  upon 
the  negligence  of  tho  plaintiff  as  a  protection.''  Thus  if 
t!io  engineer  of  a  train,  on  discovering  a  boy  on  tho  track, 
fails  to  do  that  which  ho  might  do  to  avoid  striking  him, 
ami  recklessly  and  wantonly  goes  on,  the  company  is 
liable.'^ 

§  1200.    What  not  Contributory  Negligence  —  Failing 
to  Anticipate  Another's  Fault  or  Wrongful  Act.  —  One  is 

not  cluirgeable  with  contributory  negligence  for  not  antici- 
pating that  another  person  will  violate  ^he  law  in  a  given 
particular,  and  for  not  providing  against  such  possible 
violations  of  it.*  "  In  tho  exercise  of  his  lawful  rights, 
every  man  has  a  right  to  act  on  the  belief  that  every  other 

I  WooJlium  Sarven  Wheel  Co.,  56  Mo. 
Jl!;  Morrissey  v.  Wiggins  Ferry  Co., 
1 43  Mo.  3S;{;  5)7  Am.  Dec.  402;  New- 
I  house  /•.  MUler,  35  Ind.  4G.3. 


'  H:irttif  Id  I'.  Roper,  21  Wend.  G15; 
1 34  Am.  Duo.  273;  Vaudegrif fc  v.  Redi- 

ter,  '12  N.  J.  L.  185;  51  Am.  Dec.  262; 

Lal'ayotti!  etc.  R.    R.  Co.  v.  Adams, 

2(i  liiil.  7(5;   Indianapolis  etc.  R.  R. 

Co.  /'.  Mcrlure,  26  lud.  370;  89  Am. 

Die,  4U7;  Mulherrin  v.  R.  R.  Co.,  81 

Pi.  St.  'XM;   Norris  ?'.  Litchfield,  35 

X.  H.  271;  (50  Am.  Dec.  546;  Daley  v. 

R.  11.  Co.,  20  Conn.  591;  68  Am.  Dec. 

413;  Cliic:igo  etc.  R.  R.  Co.  v.  Dona- 
Uue,  75  111.  100;  Litchfield  Coal  Co.  v. 

Tiyloi,  SI  111.590;  Peun.  R.  R.  Co. 

r.  Siudiiir,  02  lad.  301;  30  Am.  Rep. 

185;  iJraimcn  v.  Kocomo  etc.  Gravel 

Co,,  115  Ind.  115;  7  Am.  St.  Rep.  411; 


»  Brown  w.  R.  R.  Co.,  50  Mo.  461; 
11  Am.  Rep.  420;  Macon  etc.  R.  R. 
Co.  V.  Davis,  18  Ga.  079;  State  v.  R.  R. 
Co.,  52  N.  H.  528;  Cooper  v.  R.  R. 
Co.,  44  Iowa,  134;Kerwhackert'-.  R.  R. 
Co.,  3  Ohio  St.  172;  62  Am.  Dec.  246; 
Richmond  etc.  R.  R.  Co.  v.  Anderson, 
31  Gratt.  812;  31  Am.  Rep.  750;  Berg- 
man V.  R.  R.  Co.,  88  Mo.  678;  Harris 
V.  Clinton,  64  Mich.  447;  8  Am.  St. 
Rep.  842. 

'*  Kansas  Pacific  R'y  Co,  v.  Whipple, 
39  Kan.  531. 

*  Damour  v.  Lyons,  44  Iowa,  276; 
Shea  V.  R.  R.  Co.,  44Cal.  414;  Robin- 
son V.  R.  R.  Co.,  48  Cal.  409;  Cleve- 
land  etc.  R.  R.  Co.  v.  Terry,  8  Ohio 
St.  570;  Kellogg  v.  R.  R.  Co.,  26  Wis. 
223;  7  Am.  Rep.  69;  Fox  v.  Sackett, 
10  Allen,  535;  87  Am.  Dec.  6S2. 


§1201 


NEGLIGENCE. 


person  will  perform  his  duty  nnd  obey  the  laws;  and  it  is 
not  negligence  to  assume  that  he  is  not  exposed  to  u 
danger  which  can  only  come  to  him  through  a  disron;;ir(l 
of  the  law  on  the  part  of  some  other  person."  '  Thus  one 
crossing  a  railroad  track  has  a  right  to  assume  tluit  tliu 
usual  signals  of  the  approach  of  a  train  will  bo  sciisun- 
ably  given,^  and  that  it  will  not  run  at  a  speed  prohibited 
by  law.'  A  person  about  to  cross  a  street  of  a  city  in 
which  there  is  an  ordinance  against  fast  driving  luis  a 
right  to  presume,  in  the  absence  of  knowledge  to  the  con- 
trary, that  others  will  respect  and  conform  to  such  ordi. 
nance;  and  it  is  not  negligence  on  his  part  to  act  on  Iho 
presumption  that  he  is  not  exposed  to  a  danger  which  can 
only  arise  through  a  disregard  of  the  ordinance  by  otlior 
persons.*  A  foot-traveler  who  is  blind  and  ignorant  of 
the  condition  of  the  highway  has  a  right  to  prosuino 
that  the  road  is  reasonably  safe  in  its  margin,  surface,  and 
muniments.^  In  like  manner  a  person  is  not  hiinscir 
negligent  in  not  providing  against  another's  negligence 
merely  anticipated,  but  not  known.'* 

Illustrations.  —  A  boy,  who  was  standing  with  others  in  the 
street  looking  at  an  exhibition  of  fire-works  made  by  another  lioy, 
was  injured  by  a  Roman-oandle  ball  fired  in  the  direetion  df 
the  crowd.  Held,  not  guilty  of  contributory  negligence:  Br(h!- 
ley  V.  Andrews,  51  Vt.  630.  Plaiatiff  sued  defendant  for  driving 
into  plaintiff's  carriage.  Defendant  claimed  that  plaintin"  a 
licensed  liquor-seller,  had  sold  him  liquor,  which  had  producoil 
intoxication,  so  that  he  could  not  drive  properly.  Held,  no  dt- 
fense:  Cassady  v.  Magher,  85  Ind.  228. 

§  1201.  Plaintiff's  Want  of  Care  Produced  by  Defend- 
ant's Wrong.  —  The  plaintiff  is  not  barred  from  recovering 
damages  on  account  of  a  want  of  care  on  his  part,  which 

1  Jetterw.  R.  R.  Co.,  2  Keyes,  154.  *  Glidden  v.  Reading,  38  Vt  52;  8S 

»  Tabor  t>.  R.  R.  Co.,  46  Mo.  .353;  2  Am.   Dec.  639;   Salem  v.  Goller,  li 

Am.  Rep.  517.  Iml.  291. 

i*  Hart  V.  Devereux,    41   Ohio   St.  «  Harpell  v.  Curtis,  1  E.  D.  Smith, 

565.  78;  Fraler  v.  Sears  Water  Co.,  12  CA 

» Baker  u.  '^endergast,  32  ^oo  St.  555;  Brown  v,  Lynn,  31  Pa.  St.  510; 

494;  Hd  Am    >p.  620.  72  Am.  Dec.  768. 


:iu 


CONTHinUTOnY  NEGLIGENCE. 


§  1202 


Wiint  of  caro  wm  produced  by  the  dofondaiifn  own 
wrong.'  Ono  cannot  take  advantage  of  his  own  wrong 
wliore  ho  luis  omitted  to  porlbrni  a  duty,  and  hy  that 
omission  another  has  been  lulled  into  a  fancied  secu- 
rity, so  that  ho  goes  into  a  dangerous  place  and  receives 
-  injury  which  ho  might  have  avoided  if  the  other  had 
.formed  his  duty.  Such  other  person  in  such  case  will 
not  bo  permitted  to  charge  contributory  negligence  on 
tlio  injured  party .'' 

^1202.  Intoxication. — That  the  pl.iintiif  was  intox- 
icated at  the  time  of  the  injury  is  evidence  of  contributory 
lu'gligenco,  but  it  is  not  negligence  per  ae,^  except  in  a 
gross  case,  as  where  a  drunken  man  places  himself  or  goes 
to  sleep  on  a  track.*  Ono  who  gets  drunk  and  goes  to  sleep 
on  a  railroad  track  has  no  right  of  action  against  a  rail- 
road company  if  the  engineer  takes  him  for  a  log  md 
nms  over  him.*     But  if  a  locomotive  engineer   can    or 

ould  see  that  a  man  walking  on  the  track  is  drunk  and 
...liikely  to  got  out  of  the  way,  the  company  is  liable  not- 
withstanding his  contributory  negligence,  if,  without 
slackening  speed,  he  strikes  him.®  Unless  the  intoxica- 
tion contributed  to  the  injury,  i.  o.,  was  the  proximate 
cause,  it  will  not  affect  the  person's  right  of  action.     If 


'Thompson  on  Negligence,  1173; 
Pennsylvania  11.  R.  Co.  v.  Ogier,  .3.5  Pa. 
St.  GO;  78  Am.  Dec.  .322;  Fowler  v. 
R,  R.  Co..  18  W.  Va.  579;  Warren  v. 
R.  R.  Co.,  8  Allen,  227;  85  Am.  Dec. 
701.  One  was  killed  in  attempting  to 
crawl  under  a  freight  train  standing 
across  a  street,  and  having  a  locomo- 
tive attached  with  steam  up,  evidence 
that  the  conductor  called  to  him, 
"  Come  on  under;  you  will  have  plenty 
of  time,"  held,  admissible  upon  the 
queatioa  of  due  care:  Chicago  etc.  R. 
R.  Co.  V.  Sykes,  1  111.  App.  520. 

'  Pennsylvania  R.  R.  Co.  v,  Ogier, 
35  Pa.  St.  CO;  78  Am.  Dec.  323. 

'  Ditchett  V.  R.  R.  Co.,  5  Hun,  165; 
Alger  V.  Lowell,  3  Allen,  402;  Stuart 
V.  Machias,  48  Me.  477;   Cramer  v. 


Burlington,  42  Iowa,  315;  Burns  v. 
Elba,  32  Wis.  605;  Thorp  v.  Brook- 
field,  30  Conn.  321;  O'HaRan  v.  Dil- 
lon, 10  Jones  &  S.  456;  Illinois  etc. 
R.  R.  Co.  V.  Cragin,  71  111.  177;  Balti- 
more etc.  R.  R.  Co.  V.  Boteler,  .38  Md. 
508;  Ilealy  v.  New  York,  3  Hun,  708. 

*  O'Keefo  v.  R.  R.  Co.,  32  Iowa, 
467;  Whalen  v.  R.  R.  Co.,  CO  Mo. 
323;  Illinois  Central  R,  R.  Co.  v. 
Hutchinson,  47  111.  408;  Toledo  etc. 
R.  R.  Co.  V.  Riley,  47  III.  514;  Don- 
man  V.  R.  R.  Co.,  26  Minn.  357; 
Chicago  etc.  R.  R.  Co.  v.  Lewis,  5  III. 
App.  242. 

''Little  Rock  etc.  R.  R.  Co.  v. 
Haynes,  47  Ark.  497. 

«  St.  Louis  etc.  R.  R.  Co.  v.  Wilker- 
Bon,  46  Ark.  513. 


§1202 


NEGLIGENCE. 


2112 


the  intoxication  is  complete,  and  injury  results,  it  is  ncgli. 
gence  per  se,  but  when  partial,  the  intoxication  is  not  the 
cause,  but  a  condition  of  the  injury,'  because  experience 
has  shown  that  a  man  may  be  intoxicated  and  still  he 
competent  in  every  way  to  take  care  of  himself  and 
transact  his  own  business;''  therefore  the  question,  Did 
the  intoxication  cause  the  injury  ?  is  a  question  of  fact 
for  the  jury.' 

It  is  not  proper  to  charge  the  jury  that  the  intoxication 
of  deceased,  if  he  was  intoxicated,  if  it  tended  to  obscure  his 
faculties,  was,  under  the  circumstances,of  itself  negligence. 
The  court  said:  "  The  deceased  was  bound  to  exercise  or- 
dinary care,  whether  sober  or  drunk.  The  mere  fact  of 
intoxication  will  not  establish  want  of  ordinary  care.  The 
jury  must  determine  whether  the  intoxication  contributed 
to  the  injury,  and  if  it  did  not,  it  is  of  no  importance,  and 


'  Maguir'-  ,  i  ,  ii.  Co..  115  Mass. 
239;  Illinois  c  u.  ll.  R.  Co.  v.  nutchin- 
soii,  47  III.  408;  Illinois  etc.  R.  R.  Co. 
V.  Cragiu,  71  111.  177;  Chicago  etc. 
R.  R.  Co.  V.  Lewis,  5  111.  App.  242; 
Muyer  r.  R.  R.  Co.,  40  Mo.  151;  But- 
ton (..  R.  R.  Co.,  18  N.  Y.  248;  Healy 
V.  New  York,  3  Hun,  708;  Bradley 
V.  R.  11.  Co.,  8  Daly,  289;  Davis  v. 
R.  R.  Co.,  8  Or.  172;  Robinson  v. 
Piociic,  5  Cal.  460;  Marquette  etc. 
R.  R.  Co.  V.  Handford,  39  Mich. 
537;  Southwestern  R  R.  Co.  v.  Hank- 
erson,  01  Ga.  114;  Aurora  i?.  Hillman, 
90  111.  61;  Houston  etc.  R.  R.  Co.  v. 
Renson,  61  Tex.  013;  Hankerson  v.  R. 
R.  Co.,  59  Ga.  593. 

■^  Schramm  v.  O'Connor,  98  111.  539; 
Cooke  >\  Clay  wood,  IS  Ves.  12;  Shaw 

V.  Thackray,  1  Smale  &  G.  537. 

"  Alger  V.  Lowell,    3    Allen,    402; 

Cramer  v.   Burlington,  42  Iowa,  315; 

Burns  v.  Elba,  32  Wis.  605;  Thorp  v. 

Brookfield,    36  Conn.  321;    Stuart  v. 

Machiasport,   48   Me.  477;    Healy  v. 

New  York,   3  Hun,   708;  O'Hagan  v. 

Dillon,    10  Jones  &  S.  456;  Ditchett 

V.  R.  R.  Co.,  5  Hun,  165;  R.  R.  Co.  v. 

Botcler,  38  Md.  568;  Seymer  v.  Lake, 

66  Wis.    651.      The   presumption  of 

sobriety    makes    for    the    plaintiff  a 


prima  facie  case;  when  this  is  ' '  er- 
come,  the  burden  of  proof  is  shitiodto 
the  plaintiff,  who  must  establi.sli  l)y 
preponderance  of  testimony  the  fact 
respecting  which  the  burden  exists.  It 
is  not  negligence  per  se  to  be  on  a  dan- 
gerous street  in  a  state  of  intoxication, 
But  being  in  such  a  place  ii.  such  a 
condition,  the  jury  may  find  tliat  the 
plaintiff  was  negligent;  and  when  the 
jury  may  fairly  find  negligence  trora  a 
state  of  intoxication,  in  order  to  pre- 
vent   such    an    inference    it   sliouM 
appear  that  the  plaintiff  was  not  at 
the  time  of  the  injury  in  an  intox- 
icated condition.     When  it  is  negli- 
gence to  be  in  a  particular  place  in  a 
state  of  intoxication,  and  some  e\  idence 
is  introduced  tending  to  sliov,-  that 
plaintiff  was  in  thac  condition,  then 
it  must  appear  from  a  prepoaderance 
of  evidence  that  he  was  not  intoxicated 
in  order  that  he  may  recover.    The 
jury  should  have  been  instructed  that 
if  they  find  it  negligence  to  bo  in  the 
place  intoxicated,  evidence  must  show 
that  he  was  not  intoxicated,  and  that 
intoxication    should    not   defeat  re- 
covery, if  it  did  not  contribute  to  the 
injury  sustained:  Cramer  v.  Burling- 
ton, 4n  Iowa,  321. 


2112 


2113 


CONTRIBUTORY   NEGLIGENCE. 


1202 


s  nogli- 
not  the 
»eriftuce 
still  he 
self  and 
on,  Did 
I  of  fact 

xication 
3curc  his 
Tligence. 
ifcise  or- 
B  fact  of 
^re.  The 
itributed 
ance,  and 

;hi3  i3  "  er- 
is  sliitiedto 
eatabli-ih  by 
my  the  fact 
ju  exists.  It 
be  on  a  dan- 
intoxication, 
fee  ii-  such  a 
[nd  tiiatthe 
,d  when  the 
,encc  t'rora  a 
irdcr  to  pre- 
it    sliould 
was  not  at 
In  an  iiitox- 
it  is  negU- 
ar  phicc  in  a 
tine  evidence 
sliov.-  tliat 
lUtvon,  tliea 
Ipponderance 
:  intoxicated 
■cover.    The 
Ttructijd  that 
I  to  be  in  the 
\  must  show 
led,  and  that 
ttefcav  re- 
libute  te  the 
1  V.  Burling- 


should  have  no  weight  in  the  case."^     In  a  Wisconsin 
caso,  a  judgment  for  plaintiff  was  reversed  for  an  instruc- 
tion to  the  effect  that  "  the  fact  of  intoxication  alone  " 
would  not  "  prove  contributory  negligence,"  unless  the 
proof  showed  such  a  degree  of  intoxication  tliat  "  imbe- 
cility would  begin  to  affect"  the  intoxicated   person, — 
sncli  instruction  being  regarded  as  liable  to  mislead  the 
jury.     Tlic  court  said  that,  in  an  action  for  injuries  from 
negligence,  if  the  person  injured  was,  at  the  time  of  the 
injury,  intoxicated  in  any  degree,  that  fact  is  proper  ta 
be  considered  by  the  jury  in  determining  the  question  of 
contributory  negligence.'^    An  innkeeper  is  liable  for  ie-av- 
ing  unfastened  a  door  leading  to  an  unguarded  awning,, 
where  a  person  intoxicated  opened  the  door,  walked  out 
upon  the  awning,  fell  to  the  ground,  and  was  seriously 
injured.^    So  where  the  owner  of  a  wagon  left  it  standing 
on  the  highvvay  with  the  pole  projecting  thereon,  and  a 
horse  whoso  driver  was  intoxicated  collided  therewith,  the 
owner  was  held  liable."*    Where  a  person  is  injured  on  the 
highway,  the  fact  that  he  is  drunk  does  not  constitute 
negligence  per  se  on  his  part,^  but  it  is  evidence  of  want 
of  care,  and  negligence  may  be  inferred  from  it  by  the 
jury."    It  has  been  held  that  a  driver  so  intoxicated  as  to 
be  unable  to  manage  his  team  is  not  in  the  exorcise  of 
ordinary  care,  and  hence  his  intoxication  is  negligence.^ 
It  hai  been  held  in  some  case^j  that  evidence  that  the 
plaintiff  was  intoxicated  at  other  times,  or  was  in  the 
habit  of  getting  drunk,  is  not  admissible,  because  pre- 
vious intoxication  or  habits  of  intoxication  have  nothing 
to  do  with  the  case,  where  the  only  question  is  whose  neg- 

'  Ditchett  V.   R.   R.   Co.,   5  Hun,  and  cases  in  that  note;    Cassedy  v. 

165.  Stockbridge,  21  Vt.  391;  Rock  Island 

''  FitzgeraM  w.  Weston,  52  Wis.  .354.  v.  Vanlandschoot,  78  III.   485;   Wood 

'Caiiip  r.  Wood,  76  N.  Y.  92;  32  y.  Andes,  11  Hun,  543;  Alger  r.  Lowell, 

I  Am.  Rci>.  282.  3  Allen,  402. 

'  Ridley  (-.  Lamb,  10  U.  C.  Q.  B.  354.         '  Cassedy  v.  Stockbridge,  21  Vt.  391; 

'Ruliinsou  V.  Pioche,  5  Cal.  460.  Rock  Island  v.  Vaulandsclioot,  78  111. 

'See  ante,  Uitchett  v,  R.  R.  Co.,  485. 
133 


>3*^^-s52tSS? 


§  1203 


NEGLIGENCE. 


2114 


ligenco  caused  the  injury.*  Other  cases,  on  the  other  hand, 
allow  such  evidence,  and  rule  that  a  habit  of  getting 
intoxicated  raises  a  presumption  of  negligence.^  The 
testimony  of  the  surgeon  who  saw  the  injured  person  im- 
mediately after  the  occurrence,  that  he  was  then  grossly 
intoxicated,  is  competent.' 

Illustrations.  —  The  plaintiff's  intestate,  on  a  dark  and 
stormy  night,  while  very  much  intoxicated,  started  to  cross  a 
foot-bridge  after  having  been  warned  that  it  was  unsa^,  and 
that  there  was  a  safe  bridge  near  at  hand,  and  on  the  following 
morning  was  found  dead  on  the  ice  below  the  bridge.  Held, 
that  his  representative  was  not  entitled  to  recover:  Wood  v. 
Andes,  11  Hun,  543.  A  drunken  passenger  having  been  carried 
beyond  his  destination,  and  not  knowing  enough  to  pay  further 
fare  or  get  off,  was  removed  by  the  train  hands,  and  placed  a 
short  distance  from  the  track,  from  which  place  he  strayed  onto 
the  track,  and  was  killed  by  another  train,  without  special  neg- 
ligence by  the  employees  on  that  train.  Held,  that  the  company  j 
was  not  liable:  McClelland  v.  R.  R.  Co.,  94  Ind.  276.  A  track-  I 
walker  found  a  drunken  man  lying  on  the  track.  There  was 
nothing  in  the  appearance  of  the  man  to  indicate  that  he  was 
drunk  or  helpless.  The  track-walker  told  him  to  get  off,  and 
supposed  that  he  would.  He  was  struck  by  a  train.  Held,  that 
the  company  was  not  liable:  Virginia  Midland  R.  R.  Co.  \.  Bos- 
well,  82  Va.  932. 

§  1203.  Acting  Erronously  through  Sudden  Fear.— If  j 
A,  through  his  negligence  or  fault,  puts  B  in  a  position 
of  immediate  danger,  real  or  apparent,  and  B,  through  a 
sudden  impulse  of  fear,  makes  a  movement  to  escape  the 
danger,  and  in  so  doing  accidentally  receives  another 
and  different  injury  from  that  threatened  by  the  negli- 
gence  of  A,  he  may  recover  damages  of  A;  for  A's  neg- 


1  Warner  v.  R.  R.  Co.,  44  N.  y. 
465;  Cleghorn  v.  R.  R.  Co.,  56  N.  Y. 
44;  Robinson  v.  R.  R.  Co.,  7  Gray, 
92;  Gahagan  v.  R.  R.  Co.,  I  Allen, 
189;  79  Am.  Dec.  724. 

'^  Caldwell  v.  New  Jeraeyetc.  Co.,  47 
N.  Y.  282;  Frink  v.  Coe,  4  G.  Greene, 
555;  61  Am.  Dec.  141;  Gilman  v.  R.  R. 
Co.,  13  Allen,  433;  90  Am.  Dec.  210; 
Laning  v.  R.  R.  Co.,  49  N.  Y.  521;  10 


Am.  Rep.  417.  See  Cleghorn  v.  R.  R. 
Co.,  56  N.  Y.  44;  Shearman  and  Red- 
field  on  Negligence,  sec.  GOT,  note  3; 
Pennsylvania  R.  R.  Co.  v.  Books,  5"  I 
Pa.  St.  339;  Huntington  etc.  R.  R 
Co.  V.  Decker,  84  Pa.  St.  419;  82  Pa, 
St.  119. 

*  Illinois  etc.  R.  R.  Co.  o.  Cragm, 
71  111.  177. 


2115 


CONTRIBUTORY   NEGLIGENCE. 


§  1203 


ligence  or  fault  is  the  proximate  cause  of  his  injury.' 
B  is  not  guilty  of  contributory  negligence,  even  though 
had  he  not  so  acted  he  would  not  iiave  be  hurt  at  all.''  An 
act  which  a  careful  person  would  avoid  ordinarily  may 
not  be  negligent  when  done  under  the  impulse  of  a 
sudden  fear  or  surprise.'  One  who,  through  the  misman- 
agement of  the  train,  is  alarmed,  and,  in  his  fright  or 
anxiety,  leaps  from  the  cars,  is  not  to  be  charged  with  con- 
tributory negligence,*  even  though  had  he  remained  in 


L.  Co.  t).  Cragin. 


'  Thompsoa  on  Negligence,  1092; 
Coulter  y.  American  Merchants'  Union 
Express  Co.,  56  N.  Y.  58.5;  5Lans.  67; 
Ingalls  V.  Bills,  9  Met.  1;  43  Am. 
Dec.  340;  Lund  v.  Tyngsboro,  11  Cush. 
563;  59  Am.  Dec.  159;  Pittsburgh  v. 
Gricr,  22  Pa.  St.  54;  Sears  v.  Dennis, 
105  Mass.  310;  Card  v.  Ellsworth,  65 
Me.  547;  20  Am.  Rep.  722;  Mark  v. 
R.  R.  Co.,  30  Minn.  493;  Galena  etc. 
R.  R.  Co.  V.  Yarwood,  17  111.  509;  65 
Am.  Dec.  682;  Siegrist  v.  Arnot,  10 
Mo.  App.  197;  Collins  v.  Davidson,  19 
Fed.  Rep.  83. 

■i  Stokes  V.  Saltonstall,  13  Pet.  181; 
Wilson  V.  Susquehanna  Turnpike  Co., 
21  Barb.  68;  Buel  v.  R.  R.  Co.,  31  N. 
Y.  314;  88  Am.  Dec.  271;  Frink  v. 
Potter,  17  111.  406,  410;  Lund  v. 
Tyngsboro,  11  Cush.  563;  59  Am.  Dec. 
159;  Brooks  v.  Petersham,  16  Gray, 
181;  Cook  V.  Parham,  24  Ala.  21; 
Peim.  R.  R.  Co.  v.  Kilgore,  32  Pa.  St. 
292;  72  Am.  Dec.  787;  Macon  R.  R. 
Co.  V.  Winn,  26  Ga.  250.  In  Wes- 
ley City  Coal  Co.  v.  Hesler,  84  111. 
120,  the  court  say:  "It  is  said  there 
was  no  real  danger;  that  the  fire  was 
readily  extinguished,  and  had  the 
men  staid  at  their  work,  they  would 
have  suffered  no  harm.  All  this  is 
very  true.  That,  however,  is  not  the 
hinge  on  which  this  question  turns. 
It  is  o(iually  true  that  men  of  ordinary 
prudence,  with  a  full  knowledge  that 
there  was  but  one  mode  of  escape 
from  this  mine,  hearing  a  cry  of  fire, 
finding  tlie  mine  filling  with  smoke, 
and  that  from  a  fire  burning  in  the 
main  sliaft  at  a  point  above  tliem,  and 
past  which  they  must  be  carried,  if 
they  escape  at  all,  would  ordinarily  be 
vury  much  alarmed,    and,    in    most 


cases,  lose  their  ordinary  presence  of 
mind.  The  natural  consequence  of 
such  a  combination  of  facts  would  ba 
a  ruijh  of  the  men  for  the  carriage  afe 
the  main  shaft,  and  in  the  smoke  and 
darkness,  another  very  probable  con- 
sequence would  be  that  some  one  or 
more  of  these  men  in  this  confusion 
would,  by  some  misstep  or  the  jostle  of 
a  companion,  lose  his  footing  and  fall 
down  this  shaft.  Had  there  been  a 
second  mode  of  escape,  no  such  cause 
of  alarm  would  have  existed.  Men 
of  ordinary  prudence  would  have  felt 
safe,  and  been  left  to  exercise  their 
caution  in  a^voiding  accidents  on  their 
way  to  a  sure  mode  of  escape.  It 
has  long  been  settled  that  a  party 
having  given  another  reasonabe  cause 
for  alarm  cannot  complain  that  the 
person  so  alarmed  has  not  exercised 
cool  presence  of  mind,  and  thereby 
find  protection  from  responsibility 
from  damages  resulting  from  the 
alarm."  "  If  a  person,  by  a  negligent 
breach  of  duty,  expose  a  person  tow- 
ards whom  the  duty  is  contracted  to 
obvious  peril,  the  act  of  the  latter,  in 
endeavoring  to  escape  from  the  peril,  al- 
though it  may  be  the  immediate  cause 
of  the  injury,  is  not  the  less  to  be  re- 
garded as  the  wrongful  act  of  the  wrong- 
doer; and  this  doctrine  has,  we  think, 
been  rightly  extended  in  more  recent 
times  to  a  'grave  inconvenience, '  when 
the  danger  to  which  the  passenger  is  ex- 
posed is  not  in  itself  obvious '  :  Field, 
J.,  in  Robson  v.  R.  R.  Co.,  L.  R. 
lOQ.  B.  271. 

3  Dutzi  V.  Geisel,  23  Mo.  App.  676. 

*  Filer  v.  R.  R.  Co.,  49  N.  Y.  47; 
10  Am.  Rep.  327;  Stevenson  v.  R.  R. 
Co.,  5  McCrary,  634. 


§  1203 


NEGLIGENCE. 


211G 


his  place  the  injury  would  not  have  happened.*  Nor  is  a 
passenger  who  jumps  from  an  overturning  stage-couch, 
the  wheel  breaking;^  nor  is  a  horse-car  passenger  who 
precipitately  rises  from  her  seat  upon  seeing  the  defend- 
ant's steam-car  approach,  improperly  propelled;^  nor  is 
one  who  jumps  from  a  horse-car,  where  the  horses  aie 
running  away,  the  driver  has  lost  control,  and  there  is  an 
embankment  near,  over  which  the  car  is  in  danger  of  fall- 
ing;' nor  is  one  who,  in  trying  to  escape  a  train  of  coal- 
cars,  is  struck  by  an  engine  coming  in  an  opposite  direc- 
tion.^ So  if  a  traveler,  being  brought  into  inuninent  peril 
by  his  near  approach  to  a  defect  in  the  highway,  leaps 
from  his  carriage  in  order  to  avoid  it,  and  in  so  doing 
sustains  an  injury,  he  may  recover  damages  from  the 
town,  although  by  remaining  iu  his  carriage  he  would  not 
have  been  injured.^ 

Illustrations.  —  A  coach  suddenly  breaks  down,  going  at  a 
moderate  gait  on  a  level  road.  A  passenger  seated  upon  the 
top,  becoming  alarmed,  leaps  to  the  ground,  and  thereby 
sustains  an  injury.  If  he  had  remained  seated,  he  would  not 
have  been  injured.  Held,  that  the  passenger  was  not  guilty  of 
contributory  negligence:  Ingallsy.  Bills,  9  Met.  1;  43  Am.  Dec. 
340.  Defendant,  who  occupied  a  warehouse,  directed  his  ser- 
vants to  throw  a  bag  of  wool  out  of  an  upper  window,  to  save 
the  trouble  of  lowering  it  with  a  crane.  Before  dropping  the 
bag,  one  of  his  servants  called  out,  warning  passengers.  The 
plaintiff  looked  up,  saw  the  wool  coming,  and  ran  across  the 
yard,  thinking  lie  would  have  time  to  escape.  The  wool  fell 
on  him,  and  injured  him.  Held,  proper  to  tell  the  jury,  that  if 
the  plaintiff  lost  his  presence  of  mind  by  the  act  of  the  det'end- 
ant,  and,  in  the  confusion  produced  by  the  situation  in  which 
he  found  himself,  had  run  into  danger,  the  defendant  was 
liable:  Woolcyv.  Seovill,  3  Moody  &  R.  105.  Fire  was  negli- 
gently allowed  to  fall  from  a  locomotive  on  defendant's  elevated 
railroad  upon  a  horse  attached  to  a  wagon  in  the  street  below, 
and  upon  the  hand  of  the  driver.     The  horse  was  frightened, 


1 1'womley  V.  R.  R.  Co.,  69  N.  Y. 
158;  -25  Aih»  Rep.  162. 

■^  Lawrence  v.  Green,  70  Cal.  417; 
59  Am.  Rep.  428. 

3  Holzab  V.  R.  R.  Co.,  38  La.  Ann. 
18u;  58  Aui.  Kep.  177. 


♦Dimmey  v.  R.  R.  Co.,  27 Vv.  Va. 
32;  55  Am.  Rep.  292. 

^  Pennsylvania  R.  R.  Co.  v.  Wer- 
ner, 89  Pa.  St.  59. 

•  Lund  V.  Tyngaboro,  11  Cusb.  503; 
59  Am.  Dec.  159. 


2117 


CONTRIBUTORY   NEGLIGENCE 


§1204 


and  ran  away.  The  driver  attempting  to  drive  him  against 
the  curbstone  to  stop  him,  the  wagon  passed  over  the  curb- 
stone and  injured  plaintifiF,  who  was  on  the  sidewalk. 
Held,  that  he  might  recover  without  regard  as  to  whether  the 
driver  in  the  emergency  did  the  most  prudent  thing:  Lowcry  v. 
R.  R.  Co.,  99  N.  Y.  158;  52  Am.  Rep.  12.  PlaintifiF  jumped  off 
the  rear  platform  of  a  street-car  to  avoid  the  apparent  danger 
of  a  collision  between  the  car  and  an  overtaking  car.  As  the 
result  of  his  jump  he  broke  bis  leg.  Held,  that  he  was  not 
necessarily  precluded  from  maintaining  an  action  against  the 
gtreet-car  company,  the  question  of  whether  he  acted  with  un- 
due rashness  being  for  the  jury:  South  Gov.  R.  R.  Co.  v.  Ware, 
84  Ky.  267.  A  laborer  in  a  railroad  yard  found  himself  be- 
tween two  tracks  at  a  moment  when  a  train  was  approaching 
him  on  each  track.  There  was  space  enough  between  the 
tracks  to  make  it  safe  for  him  to  stand  there,  had  he  had  nerve 
sufTicient  to  stai  .1  quite  still.  Held,  that  his  right  of  action 
for  injuries  sustained  by  being  struck  was  not  necessarily  de- 
feated by  these  facts:  Collins  y.R.  R.  Co.,  55  N.  Y.  Sup.  Ct.  31. 


§  1204.  Endeavoring  to  Save  Life  of  Another. — Where 
a  person  places  himself  in  a  position  of  great  danger  in 
an  effort  to  save  another  from  a  sudden  peril,  death,  or 
great  bodily  harm,  though  it  may  be  negligence  barring 
a  recovery  of  damages  for  one  voluntarily  to  place  him- 
self in  a  position  of  danger  in  order  to  save  property 
merely,  yet  the  law"  has  so  high  a  regard  for  human  life 
that  it  will  not  impute  negligence  to  an  effort  to  preserve 
it,  unless  made  under  circumstances  constituting  rash- 
ness in  the  judgment  of  prudent  persons;  and  whether  the 
conduct  of  a  person  injured  in  such  an  attempt  was  rash 
will  be  a  question  for  the  jury.*  A  mother  who  is  injured 
by  falling  into  an  open  hatchway  while  trying  to  prevent 
her  four-year-old  child,  who  has  stumbled,  from  falling 
therein,  is  not  necessarily  guilty  of  contributory  negli- 


'  Thompson  on  Negligence,  1174; 
Eckci  t  V.  R.  R.  Co.,  43  N.  Y.  503;  3 
Am.  Rop.  721.  "Emergencies  may 
sometimes  be  given  in  eviileuce,  and 
will  Justify  what  would  otherwise  be 
au  iinliifousiblo  act;  such,  for  instance, 
ad  that  of  au  engineer  standing  at  his 
post  in  th"  endeavor  to  save  the  lives 


of  the  passengers  or  others  when  a 
collision  is  imminent,  or  of  a  iJcisou 
rushing  in  front  of  an  engine  to  save 
the  life  of  a  child,  or  placing  himself 
in  a  position  of  danger  to  save  the  life 
of  another ":  Harris  v.  Clinton,  64 
Mich.  447;  8  Am,  St.  Rep.  842. 


§1204 


NEOLIOBNCE. 


2118 


gence,  although  the  hatchway  was  reasonably  guarded.' 
Nor  is  it  contributory  negligence  in  a  mother  to  attempt 
to  rescue  her  infant  child  from  an  approaching  railroad 
train,  although  she  may  have  negligently  allowed  it  to  go  on 
the  track.  But  the  defendant  is  not  chargeable,  unless  it  is 
negl^'gent  in  respect  to  the  child  before,  or  in  respect  to 
the  mother  or  child,  after,  the  attempt  at  rescue.^  In  Mas- 
sachusetts,  in  a  recent  case,  it  was  ruled  that  where  a  per- 
son,  while  walking  along  a  street  in  a  city,  hears  a  cry  for 
help,  and  sees  a  man  on  the  ground  being  gored  by  a  bull, 
attached  to  him  by  a  rope,  and  approaches,  but  does  not 
attempt  to  assist  the  man,  because  he  is  afraid  of  the  bull, 
and  the  bull  attacks  and  injures  him,  the  question,  in  an 
action  for  such  injury,  whether  he  was  in  the  exercise  of 
due  care,  is  for  the  jury,  and  he  is  not  per  se  guilty  of  con- 
tributory  negUgence.'  One  voluntarily  exposing  himself 
to  danger  in  order  to  save  his  property  from  a  fire  caused 
by  another's  negligence  cannot  recover  therefor.* 


'  Clark  V.  Famous,  16  Mo.  App. 
463. 

« bonalioe  v.  R.  R.  Co.,  83  Mo.  560; 
53  Am.  Rep.  594. 

^  Linueliau  v.  Sampson,  126  Mass. 
506;  30  Am.  Rep.  692,  the  court  say- 
ing: "  A  question  was  raised  at  the 
trial  as  to  contributory  negligence  on 
the  part  of  the  plaintiff,  and  it  was 
contended  that  he  was  not  in  the  exer- 
cise of  reasonable  care  in  approaching 
80  near  to  the  bull  as  he  did,  and  that 
the  calls  of  humanity  would  be  no  ex- 
cuse. But  the  question  whether  the 
plaintiff's  conduct  on  the  occasion  of 
the  injury  was  wanting  in  reasonable 
prudence  and  caution,  in  view  of  all 
the  circumstances,  was  submitted  to 
the  jury,  as  a  question  peculiarly  for 
them  to  decide.  They  were  to  con- 
sider all  the  circumstances,  and  among 
otiier  things,  that  the  life  of  a  fellow- 
creature  was  in  extreme  danger;  but 
they  must  have  understood  that  rea- 
sonable prudence  and  caution  were 
elements  in  the  case  which  the  plaintiff 
must  prove.  It  does  not  follow  as  a 
natter  of  law  that  in  encountering 
tke  danger  he  was  necessarily  guilty 


of  a  want  of  due  and  reasonable  care. 
The  emergency  was  sudden,  allowing 
but  little  time  for  deliberation.  Soma 
allowance  might  well  be  made  for  the 
confusion  of  the  moment:  Buol  v.  R. 
R.  Co.,  31  N.  y.  314.  In  Eckert  r.  11. 
R.  Co.,  43  N.  Y.  502,  a  case  of  the 
rescue  of  a  child  from  being  run  over 
by  an  approahing  train,  the  court  say 
that  the  '  liw  has  so  high  a  regard  for 
human  life  that  it  will  not  impute  negli- 
gence to  an  effort  to  preserve  it,  unless 
made  under  such  circumstances  as  to 
constitute  rashness  in  the  judgment 
of  prudent  persons.'  The  law  does  not 
require  cowardice  or  absolute  inaction 
in  such  a  state  of  things.  Neither  does 
it  require  in  such  an  emergency  that 
the  plaintiff  should  have  acted  with 
entire  self -possession ;  or  tiiat  lie 
should  have  taken  the  wisest  and  most 
prudent  course,  with  a  view  to  his 
own  self-preservation,  that  could  have 
been  taken.  He  certainly  may  take 
some  risk  upon  himself,  short  of  mere 
rashness  and  recklessness." 

*  Cook  V.  Johnson,  58  Mich.  437;  55 
Am.  Bep.  703. 


2119 


CONTRIBUTORY   NEGLIGENCE. 


§  1205 


Illustrations.  —  The  deceased,  seeing  a  little  child  on  a 
railroad  track,  and  a  train  swiftly  approaching,  so  that  the  child 
would  be  almost  instantly  crushed  unless  an  immediate  eflFort 
was  made  to  save  it,  rushed  upon  the  track  for  that  purpose,  and 
succeeded  in  saving  the  child,  but  was  himself  run  over  and 
killed.  Held,  that  his  voluntarily  exposing  himself  to  the  dan- 
ger for  the  purpose  of  saving  the  child's  life  was  not,  as  matter 
of  law,  negligence  on  his  part  precluding  a  recovery:  Eclcert  v. 
R.  R.  Co.,  43  N.  Y.  503;  3  Am.  Rep.  721.  Plaintiff  was  walk- 
ing with  his  father  up  a  railroad  track,  down  which  a  train  was 
moving  at  the  rate  of  about  four  miles  an  hour,  in  full  sight. 
They  crossed  an  unplanked  bridge,  but  the  train  came  upon 
them  before  the  father  had  cleared  the  bridge,  the  son  stepped 
back  to  help  him  off  the  bridge  and  succeeded,  but  lost  his  own 
leg  in  the  act;  the  engineer  reversed  his  engine  and  took  all 
means  to  avoid  an  injury.  Held,  that  the  company  was  not 
liable:  Evamville  etc.  R.  R.  Co.  v.  Uiatty  17  Ind.  102. 

§  1205.  Rule  of  "Oomparatiire  Negligence"  in  Illinois, 
(Georgia,  and  Kansas.  —  What  is  called  the  doctrine  of 
"  comparative  negligence  "  prevails  in  Illinois,  and  per- 
haps Georgia  and  Kansas.  This  doctrine,  says  Judge 
Thompson,*  is  in  Illinois  reduced  to  a  definite  formula, 
which  may  be  stated  thus:  If,  on  comparing  the  negli- 
gence of  the  plaintiff  with  that  of  the  defendant,  or  the 
negligence  of  the  person  injured  with  that  of  the  person 
inflicting  the  injury,  the  former  is  found  to  have  been 
slight,  and  the  latter  gross,  the  plaintiff  may  recover.'^   In 


'  Thompson  ou  Xegligence,  1168. 

'  Chicago  etc.R.R.  Co.  v.  Pondrom, 
51  111.  333;  2  Am.  Rep.  306;  Galena 
etc.  R.  R.  Co.  V.  Jacobs,  20  111.  478; 
Chicago  etc.  R.  R.  v.  Dewey,  26  111. 
255;  7'J  Am.  Dec.  374;  Chicago  etc. 
R.  R.  Co.  V.  Gretzaer,  46  111.  74;  Chica- 
go etc.R.  R.  Co.  V.  Triplett,  38  111.  482; 
Ortmayer  v.  Johnson,  45  111.  469;  Ohio 
etc.  R.  R.  Co.  V.  Shanefelt,  47  111. 
497;  95  Am.  Dec.  604;  Chicago  etc. 
R.  R.  Co.  V.  Sweeney,  52  111.  325; 
Kerr  v.  Forgue,  54  111.  482;  5  Am. 
Rep.  146;  Chicago  etc.  R.  R.  Co.  w. 
Gregory,  58  111.  272;  Chicago  etc.  R. 
R.  Co.  V.  Dunn,  61  111.  385;  Indianapo- 
lis etc.  R,  R.  Co.  V.  Stables,  62111.  313; 
Chicago  etc.  R.  R.  Co.  v.  Murray,  62 
111.  326;  Toledoetc.  R.  ILCo.  v.  Spen- 


cer, 66  111.  528;  Illinois  etc.  R.  R. 
Co.  V.  Maffit,  67  111.  431;  Chicago  etc. 
R.  R.  Co.  V.  Van  Patten,  64  III.  510; 
Rockford  etc.  R.  R.  v.  Hillmer,  72  111. 
235;  Pittsburgh  etc.  R.  R.  Co.  v. 
Knutson,  69  111.  103;  Illinois  etc.  R. 
R.  Co.  V.  Cragin,  71  111.  177;  Chicago 
etc.  R.  R.  Co.  V.  Lee,  68  111.  576;  60 
111.  501;  St.  Louis  etc.  R.  K.  Co.  'v. 
Manly,  58  111.  300;  Chicago  etc.  R.R. 
Co.  V.  Coss,  73  111.  394;  Toledo  etc.  R. 
R.  Co.  V.  O'Connor,  77  111.  391;  Kewa- 
nee  f.  Depew,  80  111.  119;  Schmidt  v. 
Chicago  etc.  R.  R.  Co.,  83  III.  405; 
Wabash  R.  R.  Co.  v.  Heuks,  91  111. 
406;  Ohio  etc.  R.  R.  Co.  v.  Porter,  92 
111.  437;  North  Chicago  R.  R.  Co.  v. 
Monka,  4  111.  App.  664;  Winchester 
V.  Case,  5  111.  App.  486;  Chicago  etc, 


§  1205 


NEGLIGENCE. 


2120 


Georgia,  the  rule  seems  to  bo  not  essentially  diflbront 
from  that  in  Illinois.  "  It  is  this,  that  although  the  plain- 
tiff bo  somewhat  in  fault,  yet  if  the  defendant  bo  grossly 
neglig(Mit,  and  thereby  occasioned  or  did  not  prcA'ent  the 
mischief,  the  action  may  bo  maintained."  *  The  rule  iu 
Kansas  is  thus  stated:  It  is  not  necessary,  in  order  to 
enable  a  party  to  recover  for  injuries  to  his  property,  that 
he  shall  bo  entirely  free  from  negligence  himself;  but  if 
his  negligence  is  slight,  and  that  of  the  other  party  is 
gross,  or  if  his  is  remote,  and  that  of  the  other  the  proxi- 
mate cause  of  the  injury,  he  may  recover.  It  is  a  ques- 
tion of  fact  for  the  jury  to  determine  whether  there 
has  In^en  negligence,  and  its  nature  and  degree;  but  it  is  a 
question  of  law  for  the  court  to  determine  what  degree  of 
care  and  diligence  on  the  one  hand,  and  of  negligence  on 
the  other,  will  entitle  the  plaintiff  to  recover.^ 

Illustratioxs.  —  A    railroad   train   approached  a  higliwny 
ossing  without  giving  the  statutory  signals.      The  plaintiff 


crossing 

R.  R.  Co.  r.  Dimick,  96  111.  42;  Chicago 
V.  Stourns,  105  111.  554;  Chicago  etc. 
R.  R.  Co.  I).  O'Connor,  13  111.  App.  62; 
Wabasli  etc.  11.  R.  Co.  v.  Moran,  1,3 
111.  App.  72;  Union  etc.  Co.  v.  Mon- 
aghan,  13  111.  App.  148;  Lake  Shore 
etc.  R.  R.  Co.  V.  O'Connor,  115  111. 
254;  Chicago  etc.  R.  R.  Co.  v.  Dillon, 
17  111.  App.  355.  In  Galena  etc.  R.  R. 
Co.  i\  Jacobs,  where  this  doctrine  was 
first  announced,  Mr.  Justice  Breeze, 
who  delivered  the  opinion  of  the  court, 
says,  after  a  review  of  the  American 
and  English  authorities  on  the  subject: 
"It  will  1)0  seen  from  these  cases  that 
the  question  of  liability  does  not  de- 
pend absolutely  on  the  absence  of  all 
negligence  on  the  part  of  the  plaintiff, 
but  upon  the  relative  degree  of  care, 
or  want  of  care,  as  manifested  by  both 

Earties,  for  all  care  or  negligence  is  at 
est  but  relative,  —  the  absence  of  the 
highest  podsiblo  degree  of  care  show- 
ing tlie  presence  of  some  negligence, 
slight  as  it  may  be.  The  true  doctrine, 
therefore,  we  think,  is,  that  in  propor- 
tion to  the  negligence  of  the  defend- 
ant should  be  measured  the  degree  of 
care  required  of  the  plaintiff;  that  is  to 


say,  the  more  gross  the  negligence 
manifested  by  the  defendant,  the  lesa 
degree  of  care  will  be  required  of  the 
plaintiff  to  enable  him  to  recover.  Al- 
though these  cases  do  not  di:4tinctly 
avow  this  doctrine  in  terms,  there  is 
a  vein  of  it  very  perceptible  running 
through  very  many  of  tliein,  as  wliere 
there  are  faults  on  both  sides,  the 
plaintiff  shall  recover,  his  fault  being 
to  be  measured  by  the  defendant's 
negligence,  the  plaintiff  need  not  be 
wholly  without  fault,  as  in  Raisin  v. 
Mitchell,  9  Car.  &  P.  GV.i,  and 
Lynch  v.  Nurdin,  1  Q.  B.  29.  We  say, 
then,  that  in  this,  as  in  all  like  cases, 
the  degrees  of  negligence  must  be 
measured  and  considered;  ami  wher- 
ever it  shall  appear  that  the  plain- 
tiff's negligence  is  comparatively  slight, 
and  that  of  the  defendant  gross,  he 
shall  not  be  deprived  of  his  action. " 

'  Augusta  etc.  R.  R.  Co.  v.  ^IcEl- 
murry,  24  Ga.  75. 

^  Union  Pacific  R.  R.  Co.  v.  Rollins, 
5  Kan.  167;  Caulkins  v.  Matthews,  5 
Kan.  191;  Kansas  Pacific  R.  11.  Co.  v. 
Pointer,  14  Kan.  37;  Sawyer  v.  Sauer, 
10  Kan.  466. 


2121 


CONTRIBUTORY   NEGLIGENCE. 


§1206 


approached  the  eamo  point,  driving  a  drove  of  cnltlc,  and  his 
pon  warmnl  him  that  he  thought  he  heard  a  train  coming.  The 
plaintiff,  disregarding  the  warning,  decided  to  attuuipt'to  rush 
tlic  cuttle  acrosa  the  truck,  and  some  of  them  wore  run  over. 
Held,  that  lie  could  not  recover  damages,  because  he  and  the  de- 
fendant were  in  equal  fault:  Ohio  etc.  R.  R.  Co.  v.  Earcs,  42 
111.  288.  The  plaintiff  left  his  horse  standing  unattended  in 
the  street,  and  the  employees  of  a  telegraph  companv,  in  hand- 
ling a  broken  wire,  struck  him,  whereby  ho  became  frightened, 
ran  away,  and  killed  himself.  Held,  that  the  negligence  of  the 
pLiintiff  was  so  much  greater  than  that  of  the  defendant  that 
he  could  not  recoTer:     Wcsierii  U.  Tel.  Go.  v.  Quinn,  5G  111.  319. 

§  1206.    Rule  where  Plaintiflf  a  Law-breaker.  —  The 

fact  that  the  plaintiff  is  engaged  in  violating  the  law  does 
not  prevent  him  from  recovering  damages  of  the  defend- 
ant for  an  injury  which  the  defendant  could  have  avoided 
by  the  exercise  of  ordinary  care,  unless  the  unlawful  act 
contributed  proximately  to  produce  the  injury.^     Thus  it 
Las  been  held  not  to  prevent  a  recovery  by  the  plaintiff 
for  the  defendant's  negligence  that  the  former  was  doing 
the  following  acts  contrary  to  statute,  ordinance,  or  law, 
viz.:    That  the  plaintiff  stationed  hi^  horse  and  wagon 
transversely  to  the  course  of  the  street  while  loading  fur- 
niture thereon; 2  that  the  plaintiff's  horse  was  left  stand- 
ing in  the  street  for  more  than  five  minutes  without  any 
person  in  charge,  as  required  by  the  city  ordinance;^  tliat 
the  plaintiff  was  not  standing  as  near  to  his  horses  as  re- 
quired by  the  city  ordinance;*  that  the  plaintiff's  veliicle 
was  being  driven  on  the  wrong  side  of  the  road  at  the  time 
of  the  collision;^   that  the  plaintiff  and  defendant  were 
trotting  their  horses  upon  the  highway  for  a  purse  of 


'Thompson  on  Negligence,  1161; 
Spoflfora  V.  Harlow,  .3  Allen,  17G;  Hall 
r.  Ripley,  119  Mass.  135;  Welch  v. 
Wesson,  G  Gray,  305;  Simmonson  v. 
Stellemnorf,  Etlm.  Sel.  Cas.  194; 
Aston  /'.  Heaven,  2  Esp.  533;  Steele 
1'.  Burlcharilt,  104  Mass.  59;  6  Am. 
Rep.  491 ;  Churchill  v.  Rosebeck,  15 
Conn.  359.  Contra,  Heland  v.  City  of 
Lowell,  3  Allen,  407;    81  Am.  Dec. 


670,  And  see  cases  a.3  to  traveling  on 
Sunday,  Divisionll,,  Illegal  Contracts, 
ante. 

'■*  Steele   v.  Burkhardt,    104  Maaa. 
59;  6  Am.  Rep.  191. 

*  Kearna  v.  Snowden,  104  Mass.  63, 
note. 

*  Klipperv.  CotFey,  44  Md.  117. 
*Spoflford    V.     Harlow,     3    Allen, 

176.  ' 


1206 


NEQLIOENCB. 


2122" 


money,  at  which  time  the  defendant  willfully  ran  down 
the  plaintiff's  vehicle;*  that  the  plaintifiF  was  driving  at 
an  unlawful  rate  of  speed;'  that  his  harness  had  not  tho 
number  of  bells  upon  it  required  by  statute;'  that  ho  was 
driving  faster  than  permitted  by  law;*  that  he  was  smok- 
ing in  the  street  in  violation  of  a  city  ordinance;*  that  he 
was  working  on  Sunday,  contrary  to  statute.® 


>  Welch  V.  Wesson,  6  Gray,  505. 

3  Hall  V.  Ripley,  119  Mass.  135; 
Baker  v.  Fortlaud,  58  Me.  199;  4  Am. 
Rep.  274. 

'  Counter  v.  Cough,  8  Allen,  436. 

*  Baker  v.  Portland,  58  Me.  199;  4 
Am.  Rep.  274. 

»  Baker  v.  Portland,  58  Me.  199;  4 
Am.  Rep.  274. 

'  See  pout,  Division  III.,  Sunday. 
In  Louisville  etc.  R.  R.  Co.  v.  Buck, 
116  Ind.  566,  the  plaintiff  was  a 
brakeman  on  a  train  running  on  Sun- 
day. The  court  say:  "  We  had  oc- 
casion to  consider  this  i^uestion  in 
Louisville  etc.  R.  R.  Co.  v.  Fraw- 
ley,  110  lud.  18,  where  it  was 
presented  in  substantially  the  same 
manner  as  in  tho  present  case.  Our 
conclusion  there  was,  that  a  person  in- 
jured by  the  uegligeut  omission  of  an- 
other to  perforin  a  legal  duty  would 
not  be  denied  a  recovery,  even  though 
it  appeared  that  the  injured  person 
was,  at  the  time  of  receiving  the  in- 

i'ury,  acting  in  disobedience  of  his  col- 
ateral  obligation  to  the  state,  which 
required  of  iiim  the  observance  of  the 
Sunday  law.  If  the  railway  company 
violated  its  duty  by  furnishing  ma- 
chinery and  appliances  which  it  knew 
were  defective,  tho  danger  to  an  em- 
ployee who  was  required  to  use  the 
appliances  in  ignorance  of  their  de- 
fective condition  was  the  same  on  one 
day  as  on  another.  That  they  were 
being  used  on  Sunday  r.ither  than  on 
Monday  neither  contributed  to  nor 
was  it  tiie  eflicient  cause  of  the  injury 
which  gave  rise  to  this  action,  nor  can 
tlie  railroad  company  now  interpose 
and  become  the  cliauipion  of  the  Sun- 
day law  as  an  excuse  for  its  wrong, 
or  to  defeat  a  recovery:  Sutton  i». 
Wauwatosa,  29  Wis.  28.  It  is  quite 
true  that  a  plaintiff  wiU  in  no  case  be 
permitted  to  recover  wheu  it  ia  necea> 


sary  for  him  to  prore  his  own  illegal 
act  or  contract  as  a  part  of  his  cause 
of  action,  or  when  an  essential  eluinent 
of  his  cause  of  action  is  his  own  viola- 
tion of  law:  Holt  v.  Green,  73  Pa.  St, 
198;   Coppell  v.  HaU,  7  Wall.  .IjS; 
Steele  v.  Burkhardt,    104   Mass.  50; 
McGrath  v.  Merwin,  112  Mass.  4G7, 
But  where  he  can  prove  kis  cause  of 
action  without  proving  that  he  waa 
violating  the  law,  even  though  it  ap- 
pears incidentally  that  he  was  at  tlie 
time  actins  in  cfisobedicnce  of  some 
statute,  unless  his  illegal  act  was  tlie 
efficient  or  proximate  cause  of  the  in- 
jury complamed  of,  or  unless  the  illegal 
act  or  contract  is  the  foundation  of  \m 
action,  a  recovery  may  be  sustained 
nevertheless:     Cooley  on    Torts,  2d 
ed.,  178,  179.    Whoever  travels  about 
from  place  to  place  for  the  purpose 
of  gaming,  with  cards  or  otherwise, 
acts  in  violation  of  a  criminal  statute, 
It  would  hardly  be  claimed  that  a  re- 
covery against  a  common  carrier  would 
be  denied  if  it  appeared  iuciilontally 
in  evidence  that  a  passenger  injured 
through  the  carriers  negligence  was 
travehng  in  violation  of  the  statute 
against  gaming.    Why  should  a  lirake- 
man  who  is  required  to  work  in  vicjla- 
tion  of  the  Sunday  law  be  douied  a 
recovery  ?    The  gist  of  tho  action  in 
the  present  case  is  the  negligent  fail- 
ure of  the  railway  company  to  furnish 
safe  and  suitable  appliances,  whereby 
the  death  of  the  plaintiff's  intestate 
was  wrongfully  caused  while  he  was 
in  the  company's  service  a.s  a  brake- 
man.     The  contract  of  employment 
and  the  time  when  the  injury  occurred 
were  mere  incidents  to  and  vere  in 
no  respect  the  foundation  of  t!ie  ac- 
tion:   Louisville   etc.   R.    11.   Co.  v. 
Frawley,  110  Ind.  18;  Frost  v.  Plumb, 
13  Am.  Law  Reg.  537." 


2122  ■  2123 


CONTRIBUTORY  NEGLIGENCE.      §§  1207,  1208 


Illustrations.  —  The  defendant  negligently  drove  his  horses 
and  wagon  against  and  killed  an  ass  which  had  been  loft  in  the 
highway  fettered  in  the  fore  feet,  and  thus  unable  to  get  out  of 
tho  way  of  the  defendant's  wagon,  which  was  going  at  a  "  smart- 
ish pace  "  along  the  road.  Held^  that  tho  jury  were  properly 
directed  that,  although  it  was  an  illegal  act  on  tho  part  of  plain- 
tiff so  to  put  the  animal  on  the  highway,  the  plaintiff  was  en- 
titled to  recover:  Daviea  v.  Mann,  10  Mees.  &  W.  645. 

§  1207.  Where  Plaintiff  a  Trespasser.  —  Thus  though 
a  person  owes  no  duty  to  a  trespasser  on  his  premises,* 
yet  he  is  liable  if  he  wantonly  or  willfully  injures  him.'' 

§  1208.  Contributory  Negligence  of  Children  and 
Persons  non  Sui  Juris.  —  Where  a  child  is  so  young  as  to 
be  incapable  of  discerning  danger  or  taking  care  of  itself, 
it  cannot  be  guilty  of  contributory  negligence.^  "  The 
doctrine  of  contributory  negligence  does  not  apply  to  an 
infant  of  tender  years.  To  disentitle  the  plaintiff  to 
recover,  it  must  be  shown  that  the  injury  was  occasioned 
entirely  by  his  own  negligence."  *  The  capability  of  an 
infant  under  fourteen  to  avoid  danger  is  measured  in  the 
same  way  as  tho  capacity  of  such  a  per'son  when  charged 
with  crime.®  In  the  absence  of  clear  proof  to  the  con- 
trary, an  infant  of  the  age  of  fourteen  years  will  be 
presumed  to  have  sufficient  capacity  to  recognize  and 


'  See  ante,  Injuries  on  Real  Prop- 
erty. 

'  Brown  v.  Lynn,  31  Pa.  St.  510;  72 
Am.  Doc.  768;  Marble  v.  Ross,  124 
Mass.  44. 

'  (rarilner  v.  Grace,  1  Foat.  &  F.  .S59; 
Mangamw.  R.  R.  Co.,  38  N.  Y.  455; 
98  Am.  Dec.  66;  O'Mara  v.  R.  R.  Co., 
38  N.  Y.  445;  98  Am.  Dec.  61;  Daley 
r.ll.  R.  Co.,  26  Conn.  591;  68  Am. 
Dec,  413;  North  Pennsylvania  R.  R. 
Co.  V.  Mahoney,  57  Pa.  St.  187;  Kay 
i.R.  R.  Co.,  65  Pa.  St.  269;  3  Am. 
Rep,  G28;  Norfolk  etc.  R.  R.  Co.  v. 
Ormsby,  27  Gratt.  455;  Walters  v. 
R.  R.  Co.,  41  Iowa,  71;  Schmidt  w. 
R.R.  Co.,  23  Wis.  186;  99  Am.  Dec. 
158;  Government  Street  R.  R.  Co.  v. 
Hanlou,  53  Ala.  70;  Chicago  etc.  R.  B. 


Co.  V.  Gregory,  58  111.  226;  East  Ten- 
nessee  etc.  R.  R.  Co.  v.  St.  John,  5 
Sneed,524;  73  Am.  Dec.  149;  Bayshore 
R.  R.  Co.  V.  Hanes,  67  Ala.  6;  Frick  v. 
R.  R.  Co.,  75  Mo.  595.  A  boy  six 
years  old  struck  by  a  train  is  not 
chargeable  with  contributory  negli- 
gence: Central  Trust  Co.  v.  R.  R.  Co., 
31  Fed.  Rep.  246.  A  parent's  admis- 
sion that  he  had  warned  an  infant  to 
avoid  a  certain  danger  cannot  be  used 
against  a  sou  on  the  trial  of  his  ac- 
tion for  an  injury:  Power  v.  Harlow, 
57  Mich.  107. 

♦  Gardner  v.   Grace,    1   Fost.  &  F. 
359. 

*  Rockford  etc.   R.  R.  Co.   v.   De- 
laney,  82  111.  198;  25  Am.  Rep.  308. 


-  '^■i-^s.n:.'-^ 


1208 


NEOLIOENCE. 


2124 


avoid  (luuger.*     Wliilo  an  incxpcrioncod  youth  is  clmroo. 
able  with  less  caro  and  foresight  than  a  man,  yet  if  the 
youth  is  aware  of  the  danger,  his  negligence  will  dofiut 
his   rooovory   for   an   injury  to  which  it   directly   con. 
tributed.-     Where  a  child  at  the  time  of  an  injury  to  it 
was  8uljnns  capable  of  caring  for  its  safety,  it  is  iiHiuii. 
bent  upon  it  to  exercise  vigilance  for  its  protection,  Imt 
only  such  as  can  reasonably  bo  expected  of  a  child  of  its 
maturity  and  capacity.'     So  where  infants  arc  the  actors, 
that  will  bo  considered  an  unavoidable  accident   wliieli 
would  not  bo  so  considered  whore  the  actors  aro  adults.* 
Therefore  a  child  playing  on  or  near  a  railroad  track, 
exercising  all  the  care  that  it  is  capable  of,  may  rci  over 
for  injui'ies    caused  by   the  negligence    of  the    railroad 
company."     In  tho  following  cases  children   have  lioou 
held  guilty  of  contributory  negligence,  viz.:  A  boy  aljont 
nine  years  old  riding  on  the  runners  of  sleighs  in  the 
streets  suddenly  leaving  such  a  sleigh  in  motion  without 
looking  behind  him,  within  thirty  feet   of  a   following 
horse,  and  so  struck  and  injured;"  a  girl  of  nine   who 
had  becni   warned  of  tho  danger,  but  climbed   i'loni   a 
window  to  a  painter's  scaffold,  fell  to  the  ground,  and  was 
injured;"  a  boy   over  fifteen  years  of  age  walking  on  a 
railroad  track,  instead  of  the  road  near  by,  and  socino;  the 

'  Nuglo  r.  11.  R.  Co.,  88  Pa.  St.  35;  394;  Coagrovo  v.  Ogdcn,  49  N.  Y.  'J.".; 

32  Am.  Hop.  413.  10  Am.  Kcp.  361. 

2  DowUug  r.  Allen,  88  Mo.  293.  •'  Daley  v.  R.  R.  Co.,  2(J  Conn.  .V.H; 

3  Lynch  r.  Nunlin,  1  Q.  B.  29;  4  68  Am.  Dcc.413;Hicks('.R.  R.  (',..,(14 
Perry  &  I).  072;  Washington  etc.  Mo.  430;  Chicago  etc.  U.  II.  Co.  c, 
R.  il.  Co.  V.  Cladmon,  15  Wall.  Murray,  71  III.  OUl;  Wa:shiiis4tii:i  cte. 
401;  Sioux  Ci!:y  etc.  R.  R.  Co.  v.  R.  R.  Co.  v.  Gladmon,  15  Wall.  401; 
Stout,  17  Wall.  057;  Baltimore  etc.  Chicago  etc.  R.  R.  Co.  r.  Dowi'v  ■'tilll 
R.  R.  Co.  r.  Fryer,  30  Md.  47;  State  259;  79  Am.  Dec.  374.  per  W  ' 
V.  R.  R.  (-'().,  24  Md.  84;  87  Am.  Dec.  Pittsburgh  etc.  R.  R.  Co.  r. 

600;  Bah  more   etc.    R.     R.    Co.    v.  48  111.  221 ;  95  Am.  Dec.  S!!'.              .,!• 

McDonnell,    13    Md.  5.34;    McMahon  vania  R.  R.  Co.  ?'.  Morgan,          i.  St. 

V.    R.    R.    Co.,    39  Mil.   4.3S;    Smith  134;  Kay  v.   R.  R.   Co.,  (>.">    .  .    St. 

t'.  O'Connor,   48  Pa.    St.  218;  80  Am.  209;  3  Am.   Rep.   628;    Norfolk  .to. 

Dec.  582;  O'Flahorty  v.  R.  R.  Co.,  45  R.  R.  Co.  v.  Ormsby,  27  Cratl.  4.jj; 

Mo.  70;  100  Am.  Dec.   343;  Donoho  Manly  v.  R.  R.  Co.,  74  N.  C.  (I,-,.-;. 

V.  Vulcan   Iron  Works,    7    Mo.  App.  "  Messenger  v.  Donnio,    137  ihiss. 

447;  Byrne  r.  R.  R.  Co.,  83  N.  Y.  620.  197;  50  Am.  Rep.  295. 

*  Bullock  V.  Babcock,  3  Wend.  391,  ^  Martin  v.  Cahill,  39  Hun,  445. 


2125 


CONTRIirUTORY   NEOUOENOE. 


g  1200 


Iruiti  approaching  for  nearly  a  quarter  of  a  mile,  but 
waiting  until  it  was  very  near,  and  then  stepping  to  one 
side,  hut  only  a  little  way,  and  there,  whik?  h)oking  at  the 
wheels,  being  struck  by  a  plank  projecting  from  a  car.' 
Greater  care  is  required  of  railroads  and  others  towards 
infiuils  and  other  persons  non  sui  juris  than  towards 
adults.''' 

Illustrations. — A  boy  thirtoon  years  of  ago  ptruok  a  dog, 
which  thereupon  ))it  him.  Jlrld,  that  an  action  lor  such  injury 
wan  maintainable,  although  the  boy  was  old  enough  to  know 
that  the  striking  would  bo  apt  to  incite  the  {\o^  to  bito  him, 
proviiled  tho  boy  acted  with  such  care  as  would  be  duo  care  in 
a  hoy  of  his  years:  Plumlcy  v.  Birge,  124  Mass.  o7;  20  Am. 
Rt'p.  045.  A  boy  was  warned  off  a  gangway,  because  it  was  a 
paHsiigo  for  laborers  to  pass  through  with  iron  trucks,  wheel- 
barrows, etc.  Ho  was  subsociuently  in  the  gangway,  when  he 
way  killed  by  the  falling  of  a  car  negligently  pusliod  off  a 
tramway  overhead.  Held,  that  ho  was  not  guilty  of  contribu- 
tory negligence,  there  being  no  reason  to  expect  danger  from 
the  cars  above:  Gray  v.  Scott,  GO  Pa.  St.  345;  5  Am.  Kep.  371. 

§1209.  Injury  to  Trespassing  Children.  —  Tho  gen- 
eral rule  is,  that  one  is  not  liable  for  an  injury  received 
by  a  child  who  is  at  tho  time  a  trespasser;'  though,  as  has 
been  already  stated,  the  law  requires  special  efforts  on  the 


'  Central  R.  R.  Co.  v.  Brinson,  70 
Ga.  'JOT. 

^  0 Mara  v.  R.  R.  Co.,  38 N.  Y.  445; 
98  Am.  Dee.  01 ;  Washington  etc.  R.  R. 
Co.  r.  Gkulnion,  15  Wall.  401 ;  Lynch 
I'.  Sinitli,  104  Mass.  52;  6  Am.  Hop. 
188;  WaUi-Td  v.  R.  R.  Co.,  41  Iowa, 
"1;  East  Tunncssee  R.  Ti.  Co,  v.  St. 
T  Im,  .-.  .Sir'imI,  524;  73  Am.  Dec.  149; 
G,  .er,  72  111.  .394;  Kerr  v. 
toi-u, ,  .54  111.  482;  5  Am.  Rep.  146; 
C'hioiig>  etc.  11.  R.  Co.  V.  Gregory,  58 
I'll.  ■-'  Chicago  etc.  R.  R.  Co.  r. 
•MoK  ,  40  111.  218;  Illinois  Central 
K.  U.  ('(P.  r.  Buckner,  28  111.  299;  81 
Am,  Dec.  282;  East  Saginaw  R.  R. 
C(i.  r.  Bolm,  27  Mich.  503;  Konyon  ?•. 
R.  R.  Co.,  5  Hun,  479;  Pittsburgh 
R.  R.  Co.  V.  CaKlw.  .  72  Pa.  St.  421; 
Brcnuan  r.  R.  R.  (  <>.,  45  Conn.  284; 
2!l  Am.  Rep.  079;  R.  R.  Co.  v.  Snyder, 
18  Ohio  St.  399;  98  Am.  Dec.  175. 


^  Oil  Citj^etc.  Bridge  Co.  v.  Jackson, 
114  Pa.  St.  321;  Schmidt  w.  Kansas 
City  Distilling  Co.,  90  M.).  284;  59 
Am.  Rep.  10;  Atclii  ion  etc.  R.  K.  Co. 
V.  Flinn,  24  Kan.  027;  Kmr.son  v.  Pet- 
elcr,  35  Minn.  481;  59  Am.  Rep.  337; 
Miles  V.  R.  R.  Co.,  4  llu-lics,  172; 
Wendell  v.  R.  R.  Co.,  91  N.  Y.  420; 
Klix  I'.  Nieman,  08  Wis.  27 1 ;  00  Am. 
Rep.  854;  Fay  i\  Kent,  55  Vt.  557; 
Oalligan  v.  Metacomet  Manufacturing 
Co.,  143  Mass.  527;  Chicago  etc.  R.  R. 
Co.  V.  McLaughlin,  47  III.  205;  Central 
Branch  R.  R,  Co.  v.  Hcnigli,  23  Kan. 
.347;  33  Am.  Doc.  107;  Kx  parte  Stell, 
4  Hughes,  157.  But  a  very  young 
child  cannot  bo  a  trespasser:  Keyaer 
V.  R.  R.  Co.,  50  Mich.  559;  Frick  v. 
R.  R.  Co.,  5  Mo.  App.  4.35;  Texas 
etc.  R.  R.  Co.  V.  O'Donncll,  58  Tex. 
27. 


§1209 


NEGLIGENCE. 


2126 


part  of  the  defendant  to  prevent  an  injury,  after  it  is 
discovered.*  But  a  person  is  liable  for  an  injury  to  a 
child  trespassing  upon  his  premises,  where  he  would  not 
be  in  the  case  of  an  adult.  "  In  the  case  of  young  chil. 
dren,"  says  Judge  Cooley,^  "  and  other  persons  not  tally 
8ui  juris,  an  implied  license  might  sometimes  arise  when 
it  would  not  in  behalf  of  others.  Thus  leaving  a  tempting 
thing  for  children  to  play  with  exposed  where  they  would 
be  likely  to  gather  for  that  purpose  may  be  equivalent  to 
an  invitation  to  them  to  make  use  of  it;  and  perhaps  if 
one  were  to  throw  away  upon  his  premises  near  the  com- 
mon  way  things  tempting  to  children,  the  same  implica- 
tion slculd  arise."  Thus  an  exception  to  the  rule  laid 
down  in  a  previous  section  exists  in  the  case  of  injuries 
to  children,  although  they  may  have  been  trespassing  at 
the  time.  Here,  where  it  appears  that  from  the  position 
of  the  dangerous  object  or  defect  it  would  be  likely  to  at- 
tract and  cause  injury  to  children,  the  owner  will  be  held 
liable.'^  This  principle  applies  in  the  case  of  machinery 
left  so  near  the  highway  as  to  attract  passing  children, 
who,  not  interfered  with,  proceed  to  meddle  with  it  and 
injure  themselves.* 

In  like  manner  owners  of  cars  left  standing  on  a  pub- 
lic street  crossing  are  liable  for  injury  caused  thereby 
to  a  child  of  tender  years  w)»  >  attempts  to  pass  under 
them.^  So  persons  who  carry  on  a  dangerous  work,  like 
excavating  sand,  in  a  neighborhood  where  there  arc  many 


1  Schwier  v.  R.  R.  Co.,  90  N.  Y. 
558;  Little  Rock  R.  R.  Co.  v.  Barker, 
39  Ark.  491;  Burnett  v.  R.  R.  Co.,  10 
Neb.  332. 

2  Cooley  on  Torts,  303. 

»  Lynch  v.  Nurclin,  L.  R.  1  Q.  B.  29; 
Hydraulic  Works  v.  On;  83  Pa.  St. 
332.  Contra,  Hughes  v.  Macfie,  2 
Hurl.  &  C.  744;  Maugan  v.  Atterton, 
L.  R.  1  Ex.  239. 

*  Whirley  v.  Whiteman,  1  Head, 
610;  MuUaaey  w.Spence,  15  Abb.  Pr., 
N.  S.,  319;  Porter  v.  Brewing  Co.,  24 
Mo.  App.  1;  Boland  v.  R.  R.  Co.,  36 


Mo.  484,  the  court  saying;  "If,  there. 
fore,  any  one  using  daugcrnui  instru- 
ments, running  machinery,  or  cm- 
Eloying  vehicles  which  arc  peculiarly 
azarduus,  and  ho  know  tliiit  infiiiitj. 
idiots,  or  others  who  are  boruft  of  or 
have  but  imperfect  discretidii  are  iu 
close  or  immediate  proximity,  lie  will 
be  compelled  to  the  exercise  of  a  degree 
of  caution,  skill,  and  ddigcuce  wliah 
would  not  1 3  required  in  case  of  otliir 
perg->n8." 

*  Rauch  V.  Lloyd,  31  Pa.  St.  358;  ?2 
Am.  Doc.  747. 


2127 


CONTRIBUTORY   NEGLIGENCE. 


§1209 


small  children,  are  bound  to  take  measures  to  keep  them 
away  from  it.^  It  has  been  held  in  several  cases  in  this 
country  that  a  child  of  tender  years  sustaining  an  injury 
while  playing  on  a  railroad  turn-table  left  unlocked  and 
unguarded  Liay  maintain  an  action  therefor,  even  though 
he  is  a  trespasser  at  the  time,  it  being  on  the  company's 
premises.^  But  in  all  these  cases  the  turn-table  was  either 
on  the  public  way  or  near  it,  or  in  a  part  of  tlie  company's 
premises  open  to  strangers,  or  so  near  thereto  as  to  attract 
the  attention  of  passing  children.  Following  this  prin- 
ciple, therefore,  in  another  case,  it  was  held  that  the  rail- 
road company  was  not  liable  where  the  turn-table,  though 
unlocked  and  unguarded,  was  constructed  in  an  isolated 
place  not  near  any  public  street  or  place  where  the  pub- 
lic were  in  the  habit  of  passing.'  In  a  New^  York  case  a 
landlord,  as  required  by  statute,  had  erected  a  fire-escape 
upon  a  tenement-house  which  he  owned.  The  child  of  a 
tenant  in  one  of  the  rooms  got  out  of  the  window,  and 
walking  along  it,  fell  through  atrap-dpor  at  the  end,  which 
led  to  a  ladder,  and  was  killed.  It  was  held  that  the  owner 
was  not  liable.*    If,  from  some  unexplained  cause,  a  pile 


•  Fink  V.  Furnace  Co.,  10  Mo.  App. 
61. 

^Evansich  v.  R.  R.  Co.,  57  Tex. 
120;  44  Am.  Rep.  586;  Nagel  v.  R.  R. 
Co.,  75  Mo.  653;  42  Am.  Rep.  418; 
Kansas  Central  R.  R.  Co.  v.  Fitzsim- 
mon.s,  22  kan.  686;  31  Am.  Rep.  203; 
Kcffe-.  R.  R.  Co.,  21  Minn.  207;  18 
Am.  Rtp.  393;  Sioux  City  etc.  R.  R. 
Co.  V.  Stout,  17  ■'Vail.  657;  Koons  v. 
R.  R.  Co.,  65  Mo.  £92. 

'  St.  Louis  etc.  R.  R.  Co.  v.  Bell,  81 
111.  76;  25  Am.  Rep,  269. 

*McAlpiii  V.  Powell,  70  N.  Y.  131; 
26  Am.  Rep.  555.  "The  deceased 
clearly  had  no  right  to  go  upou  the 
platform,  and  was  there  for  no  legiti- 
mate purpose.  It  was  not  intended 
for  any  such  use,  and  the  act  of  the 
deceased  in  entering  upon  and  passing 
along  the  platform  was  in  violation  of 
the  ijurpose  for  which  it  was  designed. 
It  was  put  up  only  for  a  fire-escape, 
to  be  used  for  the  protection  of  life  in 


case  of  danger  from  fires,  and  was  not 
intended  and  was  never  used  as  a  bal- 
cony. The  proof  showed  that  children 
were  not  ■'ccustomcd  to  go  theru,  and 
it  waa  onl^  accessible  by  passing  out 
of  the  wi  idow.  Nor  does  it  appear 
from  the  evidence,  although  it  was  pro- 
tected in  part  by  an  iron  railing,  that 
it  was  intended  to  be  guarded  in  a 
manner  sufficient  to  prevent  accident 
to  very  young  children  arising  from 
such  an  exposed  position.  It  bore  no 
indication  that  it  was  designed  for  gen- 
eral use,  and  furnished  no  invitation 
or  attraction  to  young  children  any 
more  than  the  roof  of  a  stoop  or  pi- 
azza which  projects  under  the  windov7 
of  a  dwelling-house,  and  is  easy  of  ac- 
cess to  persons  in  the  vicinity.  Under 
such  a  state  of  facts,  and  where  a  per- 
son thus  voluntarily  exposes  himself 
to  danger  and  is  injured,  theru  is  no 
rule  of  law  which  authorizes  a  recov- 
ery." 


§1209 


NEGLIGENCE, 


2128 


of  lumber  falls  upon  a  child  while  trespassing  upon  tlio 
premises  of  the  defendants,  who  had  given  their  watch- 
man  orders  to  exclude  children,  which  was  generally 
done,  no  liability  will  attach.*  But  piling  lumber  upon 
and  near  the  sidewalk  of  a  public  street,  in  such  a  man- 
ner as  to  1)0  dangerous  to  children,  is  an  act  for  which 
the  employers  of  the  person  so  doing  are  responsible, 
though  done  contrary  to  their  orders.'^  It  is  not  negli- 
gence to  fail  to  guard  against  an  unexpected  and  thought- 
less act  of  a  child.* 

Illustkations.  —  Defendant's  servant  left  his  horse  and  cart 
unattciidt'd  in  a  populous  street.  The  plaintiff,  a  child  .seven 
years  old,  got  upon  the  car,  in  play;  another  child  mado  the 
horse  niove  on  while  the  plaintiff  was  in  the  act  of  getting 
down  from  it,  in  consequence  of  which  the  plaintiff  was  thrown 
down  and  had  his  leg  broken.  Held,  that  the  defendant  was 
liable  although  the  plaintiff  was  a  trespasser:  Lynch  v.  Nur- 
dill,  1  (i.  B.  29.*    A  railroad  turn-table  is  situated  near  a  popu- 


^  Vanderbock  v.  Hendrj'  34  N.  J. 
L.  4G7. 

2  Cosgi'ovi!  r.  Ogden,  49  N.  Y.  255; 
10  Aiii.  Rep.  ;U)1;  Bransom  t).  Labrot, 
81  Ky.  i;aS;  50  Am.  Hep.  193. 

3  Gallah.jr  r.  R.  R.  Co.,  37  La.  Ann. 
288. 

*  LordDciiiiian,  C.  J.,  saying:  "Can 
the  plaiiititl,  then,  consistently  with 
the  autlioritios,  maintain  his  action, 
having  bucn  at  least  equally  in  fault  ? 
The  anawvjr  is,  that,  supposing  that 
fact  ascertaiuL'il  by  the  jury,  but  to 
this  extent,  that  lie  merely  indulged 
the  natui'.il  instinct  of  a  child  inamus- 
ing  himself  with  the  empty  cart  and 
deserteil  horse,  then  we  think  that  the 
defendant  cannot  be  permitted  to 
avail  liiiiiyelf  of  that  fact.  The  most 
blamal)le  earcdessness  of  his  servant 
having  temiited  the  child,  he  ought 
not  to  ro])ro;ieh  the  child  with  yielding 
to  that  temptation.  He  has  been  the 
real  and  oidy  cause  of  the  mischief. 
He  has  lieeu  deiieient  in  ordinary 
care;  tlio  eliild,  acting  without  pru- 
dence or  thduglit,  has,  however,  shown 
the.se  (jualities  in  as  great  a  degree  as 
he  could  1)0  expected  to  possess  them. 
His  misconduct  bears  no  proportion 
to  that  of  thu  defendant,  which  pro- 


duced it."  But  the  rule  in  this  case, 
though  in  accord  with  the  weiglit  of 
authority  in  the  United  .States,  con- 
flicts with  other  cases  in  the  Knglish 
reports.  Thus  in  Mangan  r.  Attur- 
to!i,  L.  R.  1  Ex.  239,  4  Hurl.  &  C. 
3S8,  determined  in  1866  in  the  Kng- 
lish  court  of  exchequer,  the  defend- 
ant ex[iosed  in  a  public  place,  for  sale, 
unfenced  and  without  superinteud- 
eneo,  a  machine  which  mi^ht  he  sot 
in  motion  by  any  passer-by,  and  which 
was  dangerous  when  in  UK-tmn.  A 
boy  four  years  old,  by  direction  <if  Im 
brother,  seven  years  old,  placed  his 
fingers  within  the  machine  wliiist  an- 
other boy  was  turning  tlie  h.uiille 
which  moved  it,  and  his  finger.s  were 
crushed.  It  was  held  that  no  action 
lay  for  the  injury;  Brainwell,  B., 
saying:  "The  defendant  is  n.i  more 
lial)le  than  if  he  had  exposed  goods 
colored  with  a  poisonous  paint,  and 
the  child  had  sucked  them.  It  may 
seem  a  harsh  way  of  putting  it,  imt 
suppose  this  machine  had  Ijeen  of  a 
very  delicate  construction,  and  liad 
loen  injured  by  the  child's  lingers, 
would  not  the  child,  in  spite  of  liij 
tender  years,  have  been  liable  to  an 
action  as  a  tort-feasor  ? "   Ho  iu  Hughes 


2120 


CONTRIBUTORY   NEGLIGENCE. 


§1209 


lous  city,  ill  an  open  prairie,  where  the  cattle  of  citizens  roam 
ami  graze,  where  persons  frequently  pass  and  repass,  and 
where  boys  often  play.  It  is  left  without  locks  or  fastenings, 
and  without  being  watched  or  gu' »rded,  or  even  fenced  in.  A 
boy,  hunting  his  father's  cows,  goes  to  the  turji-table  with  other 
boys,  and  rides  and  plays  upon  it,  and  is  injured  by  means 
thereof.  Held,  that  the  boy  is  not  guilty  of  contributory 
negligence,  and  the  railroad  is  liable:  Kansas  Central  li. 
R.  Co.  V.  Fltzsimmons,  22  Kan.  686;  31  Am.  Rep.  203. 
Defendant  owned,  and  kept  for  the  purpose  of  turning  its  en- 
gines, a  turn-table,  which  was  built  within  forty  rods  of  it  depot 
building  in  a  small  town.  It  was  left  unlocked  and  unguarded, 
and  children  were  in  the  habit  of  playing  upon  it.  While  so 
playing  with  other  children,  the  plaintifiF's  foot  was  caught  be- 
tween the  end  of  the  rails  and  crushed.  Held,  that  he  was  en- 
titled to  recover  damages:  Keffe  v.  R.  R.  Co.,  21  Minn.  207;  18  Am> 
Rep.  393.  The  proprietors  of  a  paper-mill  propelled  by  steam,  in 
a  sparsely  settled  portion  of  a  city,  left  two  cog-wheels  geared  to- 

have  maintained  no  action.  He  would 
voluntarily  have  mc'ldled,  for  no  law- 
ful purpose,  y/hn  that  which,  if  left 
alone,  would  not  have  hurt  him.  He 
would  therefore,  at  all  events,  have 
contributed  by  his  own  negligence  to 
his  damage.  We  think  the  fact  of  the 
plaintiff  being  of  tender  years  makes 
no  difference.  His  touching  the  flap 
was  for  no  lawful  purpose;  and  if  he 
could  maintain  the  action,  he  could 
equally  do  so  if  the  ilap  had  been 
placed  inside  the  defendant's  premises, 
within  sight  and  reach  of  the  child. 
As  far  as  the  child'.s  act  is  concerned, 
he  had  no  more  right  to  touch  this 
flap  for  the  purpose  of  which  he  did 
touch  it  than  he  would  have  had  if  it 
had  been  in-;  le  the  defendant's  prem- 
ises. Cases  V.  ore  referred  to,  supposed 
to  be  in  favor  of  the  plaintiff.  We 
think  none  are  deci^^ivo  of  this  case, 
and  no  case  establishes  a  principle  op- 
posed to  our  view,  which  is  that  the 
nonsuit  was  right.  As  to  the  other 
action,  in  which  Abbott  was  plaintiff, 
tlie  case  is  different.  If  he  was  play- 
ing with  Hughes,  so  as  to  be  a  joint 
actor  with  him,  he  cannot  maintain 
this  action.  If  not,  wc  think  he  can, 
as  his  injuries  would  then  be  the  re- 
sult of  the  joint  negligence  of  Hughes 
and  the  defendants.  How  this  is 
does  not  appear;  and  we  think  as 
to  his  case  there  ought  to  be  a  new 
trial." 


V.  Macfle,  2   Hurl.  &  C.  744,  where 
I'oUock,  C.  B.,  delivered  the  opinion 
of  tho  court,  as  follows:  "It  appeared 
there  wad  a  public  street  in  Liverpool, 
over  tlie  whole  of  which,   from  fence 
to  fence,  the  public  had  a  right  of  way, 
suljject  to  the  existence  of  certain  cel- 
lars.   On  one  side  of  the  street  was  a 
foot-path;  on  the  other  side  no  foot- 
patli,  l)ut  tho  cellars  alluded  to,  which 
made  that  side  less  commodious  as  a 
way.    .Still,  the  public  had  the  right  to 
pass  there.     Tho  defendant,  whq  was 
the  occupier  of  a  house  and  cellar  on 
this  latter  side,    took  off  the  flap  or 
cover  of  Ilia  cellar  and  placed  it  against 
the  wall  on  tlie  same  side,  nearly  iip- 
right,  so  that  it  could  easily  be  pulled 
over.     It   may  be  admitted  that  if  a 
person,   in  passing  along   the  street, 
had,  without  carelessness  (as,  for  ex- 
ample,   by    his    dress    being    blown 
against  it),  pulled  the  flap  over,  and 
been   liui't    thereby,  he   might  have 
maintained  an  action  against  the  do- 
feudant.s  for  the  negligence  or  wrong 
ia  placing  the  flap  so  that,  without  any 
negligence  in  the  plaintiff,  it  was  like- 
ly to  do,   and  had  done,   damage  to 
him.     lu  the  case  '.n  which  Hughes 
was  the  plaintiff,  the  flap  was  pulled 
over  by  the  plaintiff,  a  child  of  tender 
years  [sevcuj,  by  playing  on  it  and 
jumping  from  it,  when  it   fell  upon 
him  aud  hurt  h'  i  severely.     Had  he 
beeu  an  adult,  it  is  clear  he  could 


§  1209 


NEGLIGENCE. 


2130 


gether  outside  the  wall,  twcntyinchos  from  the  ground,  and  twenty 
feet  from  the  street,  exposed,  unprotected,  and  constantly  in 
motion.     A  boy  three  years  of  age,  playing  near  this  gearing, 
was  caught  in  it  and  his  leg  taken  off.     Eighteen  years  after- 
wards, on  coming  of  age,  he  brought  an  action  for  the  damages. 
The  jury  found  for  the  defendants.     Held,  that  the  verdict  was 
against  the  evidence:    Whuirley  y.  Whiteviariy  1  Head,  610.     The 
owner  of  a  coal-yard  had  an  elevator  worked  by  biriuu  close  to 
the   sidewalk.     During  an  intermission  of   work,  the  sliding 
door  by  which  it  was  commonly  shut  off  from  the  street  was 
left  open  and  unguarded,  in  consequence  of  which  a  child  got 
under  it  and  was  crushed  by  the  descending  car.    Held,  that  the 
question  of  the  defendant's  negligence  was  for  a  jury:  Mvl. 
laney  v.  Spencc,  15  Abb.  Pr.,  N.  S.,  319.    A  railroad  company  luul 
a  turn-table,  used  for  the  purpose  of  turning  locon)otives,  nitu- 
ated  near  two  traveled  roads,  in  a  handet  of  about  one   hun- 
dred and  fifty  people.     The  latch  by  which  it  was  fastened  was 
broken,  and  children  could  easily  turn  it  around.     Thn-e  pniall 
boys  went  to  it  to  play;  and  while  two  of  them  were  turning  it 
around,  the  foot  of  the  third  one  was  caught  between  a  rail  of 
the  turn-table  and  a  rail  of  the  connecting  railroad  track,  and 
was  crushed.     Held,  that  whether  there  was  negligence  on  the 
part  of  the  railway  company  was  properly  left  to  the  jury:  Sioux 
City  etc.  R.  R.  Co.  v.  Stout,  17  Wall.  657.     Adjoining  a  factory 
was  a  private  alley,  which  communicated  with  a  public  street 
by  a  gate   which   was  frequently  left   opened   by  employees, 
though  contrary  to  orders.     In  this  alley,  twenty-four  feet  from 
the  street,  was  a  platform   to  be  raised  and  lowered  in  rcccinng 
and  shipping  goods.     This  platform,  jvhen  raised,  rested  against 
the  wall,  and  was  held  up  only  by  its  own  slight  inclination, 
having  no  fastening.     A  child  six  years  old,  playing  in  the 
street,  strayed  into  the  alley,  and  was  killed  by  the  fall  of  the 
platform.  Held,  that  the  lessees  of  the  factory  were  liable  :  Ihj- 
draulic  Works  Co.  v.  Orr,  83  Pa. St.  332.     The  defendant  setup 
a  gate  on  his  own  land,  by  the  side  of  a  lane  through  which  the 
plaintiff,  a  child  between  six  and  seven  years  of  age,  with  other 
children  of  the  same  neighborhood,  were  accustomed  to  pass 
from  their  places  of  residence  to  the  highway.     The  plaintiff, 
in  passing  along  this  lane,  put  his  hands  on  the  gate  and  shook 
it,  in  consequence  of  which  it  fell  upon  him  and  broke  his  leg, 
Held,  tha,i  the  defendant   was  liable:     Birge  v.  Gardiner,  ID 
Conn.  507;  50  Am.  Dec.  261.     An  action  was  brought  for  an 
injury  to  a  boy  twelve  years  of  age,  occasioned  by  the  negli- 
gence of  the  defendant  in  placing  upon  the  sidewalk  a  number 
of  barrels  and  counters  in  a  tottering  condition,  and  allowing 
them  to  remain  so  for  several  weeks.    The  plaintiff,  in  passing 
this  rubbish,  on  his  way  home  from  his  work  to  dinner,  put  his 


2131 


CONTRIBUTORY  NEGLIGENCE. 


§  1209 


liands  upon  a  counter,  apparently  making  a  motion  to  jump 
upon  it,  when  it  fell  upon  him,  fracturing  his  leg.     Held,  that 
ho  was  entitled  to  recover:     Kerr  v.  Forgue,  54  111.  282;  5  Am. 
Rep.  146.     A  child  called  to  L.,  another  child  seven  years  old, 
to  come  across  the  street  and  see  him  move  the  tongue  of  a 
truck  loaded  witn  iron,  and  carelessly  left  by  the  owners  stand- 
ing in  the  street.     As  L.  approached,  the  iron  fell  on  him  and 
injured  him.     In  an  action  by  L.  to  recover  from  the  owner, 
held,  that  an  instruction  that  if  L.  was  in  the  exercise  of  due 
care,  and  went,  attracted  by  curiosity  only,  and  not  as  a  joint 
actor  to  encourage  the  meddler,  he  could  recover,  was  proper: 
Lane  v.  Atlantic  Works,  111  Mass.  136;  107  Mass.  104.     A  per- 
son who  had  contracted  with  a  school  district  for  drilling  a 
well  in  the  school-house  grounds,  left  his  drilling-machine  un- 
locked and  unguarded,  and  in  his  absence,  one  of  the  school 
children  was  injured  while  playing  with  it.     Held,  that  the  dis- 
trict was  not  liable :  Wood  v.  Independent  School  District,  44  Iowa, 
27.'  Defendant  owned  an  abandoned  anduninclosed  brick-yard, 
with  an  open  and  unguarded,  but  plainly  visible,  well  in  it, 
about  eighty  feet  from  the  nearest  highway.     The  public  were 
accustomed  to  cross  the  yard,  but  the  paths  were  somewhat  dis- 
tant from  the  well.     The  nearest  dwelling-house  was  three  hun- 
dred yards  distant.     The  lot  was  a  common  place  of  resort  of 
children  and  adults.     A  boy  eight  years  old  was  found  drowned 
in  the  well,   having  evidently  been  fishing  in  it  by  daylight. 
IlchU  that  no  action  would  lie:  Gillespie  v.  McGowen,  100  Pa. 
St.  144;  45  Am.  Rep.  365.* 


'The  court  saying:  "Wo  ate  not 
prcpai'oil  to  hold  that  every  person 
lira  iiig  upon  his  premises  machinery, 
tooli,  or  implements  which  would  bo 
(1  ul^crous  playthings  for  children,  and 
ill  tlieir  nature  affording  special  temp- 
t:itioiis  to  children  to  play  with  them, 
ij  uiuler  obligation  to  guard  them  in 
order  to  protect  himself  from  liability 
for  injuries  to  children  received  while 
playiii--  with  them,  although  the  chil- 
dren were  rightfully  on  the  premises." 

•' Tiiu  court  saying:  "We  are  un- 
a'tlo  to  see  any  tiling  in  this  case  to 
charu'o  the  defendants  with  negligence 
ill  not  inclosing  their  lot  or  guarding 
the  Well.  There  was  no  concealed  trap 
or  do;il-t'all  as  in  Hydraulic  Co.  v.  Orr. 
The  well  was  open  and  visible  to  the 
eye.  No  one  was  likely  to  walk  into 
it  by  (lay,  and  this  accident  did  not  oc- 
cur at  ui,L;lit.  A  boy  playing  upon  its 
edge  might  fall  in,  just  as  he  might  in 
any  poud  or  stream  of  water.    In  thia 


respect  the  well  was  no  more  dangerous 
tlian  the  river  front  on  both  .sidcj  of  the 
city,  where  boys  of  all  ages  congregate 
in  large  numbers  for  lishi;ig  and  other 
amusements.  Vacant  brick-yards  and 
open  lots  exist  on  all  sitles  of  the 
city.  There  are  streams  and  pools  of 
water  where  children  may  be  drowned; 
there  are  inequalities  of  surface  where 
they  may  be  injured.  To  compel  the 
owners  of  such  property  cither  to  in- 
close it  or  iill  up  their  ponds  and  level 
the  surface  so  that  trespassers  may  not 
be  injured  would  be  an  oppressive 
rule.  The  law  does  not  require  us  to 
enforce  any  such  principle,  oven  where 
the  trespassers  are  children.  We  all 
know  that  boys  of  eight  years  of  age 
indulge  in  athletic  sports.  They  tish, 
shoot,  swim,  ami  climb  trees.  All  of 
these  amusements  are  attended  with 
danger,  and  accidents  frequently  oc- 
cur. It  is  i)art  of  a  boy's  nature  to 
trespass,    especially  where    there    is 


81210 


XEOLIGENCE. 


2132 


§  1210.    Imputed  Negligence  of  Parents  or  Guardians. 

—  In  the  leading  case  of  Ilartfield  v.  Roper, ^  decided  by 
the  supreme  court  of  New  York  in  1839,  an  action  was 
brought  for  a  negligent  injury  to  a  child  two  years  of  age, 
who  was  run  over  while  at  play  in  a  public  street.  The 
court  held  that  where  a  child  of  such  tender  age  as  not  to 
possess  sufficient  discretion  to  avoid  danger  is  permitted 
by  ]jis  parents  to  be  in  a  public  highway  without  any  one 
to  guard  him,  and  is  there  run  over  by  a  traveler  and  in- 
jured, neither  trespass  nor  case  lies  against  the  traveler, 
unless  the  injury  was  voluntary,  or  arose  from  "gross" 
negligence  on  his  part.  In  an  action  for  such  injury, 
if  there  was  negligence  on  the  part  of  the  plaintiff  con- 
tributing to  the  injury,  there  cannot  be  a  recovery;  and 
although  the  child,  by  reason  of  his  tender  age,  was  in- 
capable of  using  that  ordinary  care  which  is  required  of 
a  discreet  and  prudent  person,  the  want  of  such  care  on 
the  part  of  the  parents  or  guardians  of  the  child  fur- 
nishes the  same  answer  to  an  action  by  the  child  as  would 
its  omission  on  the  part  of  the  plaintiff  in  an  action  by 
an  adult.^     This  doctrine  has  been  followed  in  a  number 


tempting  fruit;  yet  I  never  heard  that 
it  was  the  duty  of  the  owner  of  a  fruit- 
tree  to  cut  it  down  because  a  boy 
trespasser  may  possibly  fall  from  its 
branches.  Yet  the  principle  contended 
for  by  the  plaintiff  wouhl  bring  us  to 
this  absurdity  if  carried  to  its  logical 
conclusion.  Moreover,  it  would  charge 
the  duty  of  the  protection  of  children 
upon  every  member  of  the  community 
except  their  parents." 

»  21  Wend.  615;  34  Am.  Dec.  273. 

^  Followed  in  New  York  in  later 
cases:  Ihl  v.  R.  R.  Co.,  47  N.  Y.  317; 
7  Am.  Rep.  450;  Morrison  i\  R.  R. 
Co.,  5G  N.  Y.  305;  Mangam  v.  R.  R. 
Co.,  38  N.  Y.  455;  98  Am.  Dec.  66, 
the  court  saying:  "This  rule  applies 
to  infants,  in  their  relations  to  society, 
who  are  of  such  tender  ago  that  tV.oy 
are  incapable  of  self-control  and  per- 
sonal protection.  An  infant  in  its  first 
years  ia  not  aui  jam.    It  belongs  to 


anothir,  to  whom  discretion  in  the 
care  of  its  person  is  exclusively  con- 
fided. The  custody  of  the  infant  of 
tender  years  is  confided  by  law  to  its 
parents,  or  those  standing  in  loco  j)d- 
rentis;  and  not  having  that  discretiou 
necessary  for  personal  protection,  tlie 
parent  is  held,  in  law,  to  exorcise  it 
for  him,  and  in  cases  of  personid  inju- 
ries received  from  the  negligence  of 
others,  the  law  imputes  to  tlio  infant 
the  negligence  of  the  parents.  The 
infant  being  noii  sui  juris,  and  iiaviug 
a  keeper,  in  law,  to  whose  diseretion 
in  the  care  of  his  person  ho  is  conlided, 
his  acts,  as  regards  third  persons,  must 
be  held,  in  law,  the  acts  of  the  infant, 
his  negligence,  the  negligence  <if  the 
infant.  '  But  see  Thurston  r.  11.  R. 
Co.,  60  N.  Y.  333,  and  McGairy  r. 
Loomis,  63  N.  Y.  104,  which  coubiiler- 
ably  weaken  the  authority  of  the  ear- 
lier cases. 


2133 


CONTRIBUTORY  NEGLIGENCE. 


§  1210 


of  states.^  But  in  some  of  these  states  the  doctrine,  though 
professedly  followed,  is  much  modified.  Thus  in  Mary- 
land it  is  held  that  a  child  non  aui  juris  will  not  be  pre- 
vented from  recovering  in  consequence  of  the  negligence 
of  his  parents,  if  the  jury  shall  find  that  the  consequences 
of  such  negligence  could  have  been  avoided  by  the  exer- 
cise of  ordinary  care  and  prudence  on  the  part  of  the  de- 
fendant.- In  Illinois,  under  the  doctrine  of  comparative 
negligence,  which  prevails  in  that  state,  the  child  may 
recover  damages,  provided  the  parent's  negligence  was 
slight,  and  the  defendant's  gross  in  comparison.' 


'  California.  —  Karr  v.  Parks,  40  Cal. 
188;  Schierhold  v.  R.  R.  Co.,  40  Cal. 
447;  Meeks  v.  R.  R.  Co.,  52  Cal.  002. 

Illinoi'i.  —  Chicago  v.  Major,  18  111. 
349;  (38  Am.  Dec.  553;  Chicago  etc. 
11. 11.  Co.  V.  Gregory,  58  111.  220;  Chi- 
cago  r.  Starr's  Adin'r,  42  111.  174;  89 
Am.  Due.  423;  Chicago  etc.  R.  R.  Co. 
V.  Becker,  70  111.  25;  84  III.  482;  Chi- 
cago r.  Hesing,  83  111.  204;  25  Am. 
Rep.  378;  Toledo  etc.  R.  R.  Co.  v. 
Grable,  88  111.  441. 

Iinllina.  — Evansvillo  etc. R. R.  Co. 
v.  Wolf,  59  Ind.  89;  Jeflfersonville  etc. 
II.  R.  Co.  V.  Bowcn,  40  Ind.  545;  49 
IikI.  lot;  Pittsburgh  etc.  R.  R.  Co.  v. 
Viuiiig,  27  Ind.  513;  92  Am.  Dec.  269; 
Lafiiyotto  etc.  R.  R.  Co.  v.  Hufifman, 
28  Ind.  287;  92  Am.  Dec.  318;  Hath- 
away V.  R.  R.  Co.,  40  Ind.  25. 

Kuntuchj.  —  Louisville  etc.  Canal 
Co.  r.  Murphy,  9  Bush,  522. 

Maine  —  Brown  v.  R.  R.  Co.,  58 
Me.  384. 

Mnnjlnnd.  — McMahonv.  R.  R.  Co., 
39  Md.  4:i9;  Baltimore  etc.  R.  R.  Co. 
r.  McDonnell,  43  Md.  551. 

Mamiclimetts.  —  Wright  v.  R.  R. 
Co.,  4  Allen,  283;  Holly  v.  Boston 
Giia  Co.,  8  Gray,  123;  59  Am.  Dec, 
233;  Mulligan  v.  Curtis,  100  Mass. 
512;  Lynch  v.  Smith,  104  Mass.  53;  6 
Am.  Rop.  188;  Callahan  v.  Bean,  9 
AUoii,  401;  Lovett  v.  R.  R.  Co.,  9  Al- 
len, 557. 

Mk'iniiri.  — Isabel  v.  R.  R.  Co.,  (50 
Mo.  475;  Bolaud  v.  R.  R.  Co.,  36  Mo. 
4S4.  But  see  Stillsou  v.  R.  R.  Co.,  67 
Mo.G71. 

Nrhrd-ska.  —  Meyer  v.  R.  R.  Co.,  2 
Neb.  319. 


Wisconsin.  — Ewen  v.  R.  R.  Co.,  38 
Wis.  613. 

■•'McMahon  v.  R.  R.  Co.,  T''  Md. 
438;  Baltimore  etc.  R.  R.  Co.  v.  Mc- 
Donnell, 43  Md.  535. 

»  Chicago  V.  Major,  18  111.  349;  68 
Am.  Dec.  553;  Chicago  v.  Hesing,  S3 
111.  204;  25  Am.  Rep.  378;  Chicago 
etc.  R.  R.  Co.  V.  Gregory,  58  111.  226; 
Pittsburg  etc.  R.  R.  Co.  v.  Bunistead, 
48  111.  221;  95  Am.  Dec.  539;  Chicago 
etc.  R.  R.  Co.  V.  McLaughlin,  47  111. 
265;  Ohio  etc.  R.  R.  Co.u.  Stratton,  78 
111.  88;  CMcagoetc.  R.  R.  Co.  v.Bccker, 
84  111.  483.  In  Chicago  v.  Starr,  42  111. 
174,  89  Am.  Dec.  422,  where  a  child 
of  six  was  killed  in  the  street,  it  was 
said:  "  That  it  was  carelessness  of  no 
slight  degree  to  permit  this  child  of  six 
years  thus  to  wander  over  the  streets 
of  a  crowded  city  is  a  proposition 
that    admits    neither    of  debate  nor 

doubt We  are  of  opinion  that 

the  negligence  on  the  part  of  the  city 
was  not  only  not  more,  but  was  oven 
less,  than  that  fairly  attributable 
to  the  parents  of  the  child."  In  To- 
ledo etc.  Co.  V.  Grable,  88  111.  442,  a 
child  twenty-eight  months  old  wan- 
dered on  the  track  and  was  run  over, 
and  the  mother  was  killed  in  trying 
to  save  the  child.  The  court  said: 
"Where  there  is  negligence  on  the 
part  of  the  injured  party,  or,  as  in  tliis 
case,  on  the  part  of  those  charged  with 
the  care  of  the  injured  party,  contrib- 
uting directly  to  produce  the  result, 
there  can  be  no  recovery,  unless  such 
negligence  is  slight,  and  that  of  the  de- 
fendant grosa  in  the  comparison." 


§1210 


NEGLIGENCE. 


2134 


On  the  other  hand,  in  a  number  of  states,  the  doctrine  is 
denied,  and  it  is  held  that  the  failure  of  the  parent  to 
exercise  proper  care  over  the  child,  such  as  that  it  shall  Lo 
restrained  within  safe  limits,  cannot  afifect  the  cliild's  right 
of  action  for  injuries  sustained  through  the  negligence  of 
third  persons.* 


'  A  labama,  —  Government  etc.  R, 
R.  Co.  V.  llanlon,  53  Ala.  70;  Pratt 
Coal  Co,  V.  Brawley,  83  Ala.  371;  3 
Am.  St.  Rep.  751. 

Con)ieclicnt.  —  Birgo  v.  Gardiner,  19 
Conu.  507;  50  Am.  Dec.  261.  In  Dalev 
V.  R.  R.  Co.,  2G  Conn.  591,  08  Am". 
Dec.  413,  a  child  three  years  old 
was  run  over  in  the  city  of  Norwich 
by  a  freight  train  drawn  by  powerful 
engines,  and  making  from  live  to  fif- 
teen niilea  per  hour,  around  a  curve, 
where  the  engineer  could  not  see  forty 
paces  ahead.  The  trial  court  said:  "In 
an  action  brought  by  the  father,  his 
negligence  might  be  a  defense,  but  in 
an  action  by  a  child  for  an  injury  in- 
flicted on  her  through  the  defendant's 
negligence,  if  such  negligence  is  proved 
against  them,  they  are  not  relieved 
from  tlie  conseijuences  of  their  own 
fault  because  the  natural  protectors  of 
the  plaintiff  may  also  have  been  want- 
ing in  tlieir  duty  towards  her."  On 
appeal,  the  supreme  court  say:  "We 
entertain  no  doubt  that  the  view  ex- 
pressed by  tlie  judge  is  entirely  correct. 
.  .  .  .  It  is  obvious  that  the  negligence 
of  the  parents,  if  there  was  any,  is  not 
tlie  want  of  ordinary  care  in  a  child 
less  tiian  three  years  of  age,  however 
mucli  such  negligence  might  be  a  de- 
fense to  an  action  by  the  father,  had 
he  suc'l  the  company  for  expenses  in- 
curred, or  for  loss  of  service." 

loiva.  —  In  Walters  v.  R.  R.  Co.  41 
Iowa,  71,  a  child  two  years  old  was 
run  over  in  Davenport  by  a  freight 
train.  The  person  in  charge  of  the 
child  wa.'B  claimed  to  have  been  negli- 
gent in  permitting  the  child  to  get 
upon  the  track.  Day,  J.,  speaking 
for  the  supreme  court,  and  holding 
that  a  child  of  two  cannot  be  deemed 
guilty  of  negligence,  says:  "When, 
therefore,  the  parents,  who  are  pri- 
mal ily  intrusted  with  the  protection 
and  care  of  their  infant  children,  and 
\tho  are  entitled  to  the  pecuniary  com- 


pensation which  the  law  allows  for  a 
wrongful  act  resulting  in  their  dwitli, 
exercise  reasonable  and  ordinary  ciuc, 
the  public  interests  are  sulwuived, 
there  is  no  good  reason  why  the  uejiH- 
gence  of  the  person  in  charge  of  the 
child  should  be  imputed  to  the  piuciit, 
and  through  the  parent  to  the  child 
itself." 

Ohio.  —  Bellefontaine  R.  R.  Co.  t: 
Snyder,  18  Ohio  St.  399;  98  Am.  Due. 
175.  Where  a  girl  of  six  was  run  uvur 
l)y  a  gravel  train,  the  court  say:  "  Wo 
have  examined  most  of  the  authorities 
with  some  care,  and  the  result  is  a  eoii- 
viction  that  in  most  of  the  cases  the  as- 
sertion of  the  doctrine  amounts  to  little 

more  than  mere  tZ/c<rt The  cases 

warrant  the  declaration  of  no  such  gen- 

oral  rule The  utmost  that  can 

fairly  be  claimed  from  the  authorities 
is,  that  the  rule  is  applicable  to  .some 
cases,  to  be  determined  by  the  nature 

of  the  negligence  of  defendant 

The  weight  of  authority,  in  our  jiulg- 
ment,  as  well  as  the  reasoning,  is 
against  the  adoption  of  the  duetriue 
in  any  form  or  under  any  cinum. 
stances."  In  Cleveland  et,c.  R.  K.  Co. 
V.  Manson,  30  Ohio  St.  451,  where  the 
plaintiff  was  a  girl  of  nine,  that  eourt 
follows  Snyder  s  case,  and  ileilaies 
that  the  doctrine  of  imputed  negli- 
gence does  not  prevail  in  Ohio.  In  St. 
Clair  R.  R.  Co.  v.  Eadie,  43  Ohio  (St. 
91,  54  Am.  Rep.  144,  a  female  of  six- 
teen was  injured  by  the  collision  with 
a  street-car  of  a  wagon  in  which  she  \v;is 
riding  with  her  father,  he  driviiii;, 
through  the  mutual  and  coneurriiig 
negligence  of  the  father  ami  the 
driver  of  the  street-car.  The  eourt 
hold  the  plaintiff  not  responsiblu  ler 
her  father  s  negligence. 

Minimota.  —  St.  Paul  v.  Kirhy, 
8  Minn.  154;  Cahill  v.  Eastniiui, 
18  Minn.  324;  10  Am.  Rep.  V^; 
Fitzgerald  v.  R.  R.  Co.,  29  -Miuu. 
376. 


2135 


CONTRIBUTORY   NEGLIGENCE. 


§1210 


But  even  in  those  states  where  the  doctrine  of  imputed 
negligence  is  not  held  to,  the  parent,  when  bringing  an 
action  in  his  own  name,  for  injury  to  himself,  cannot 
recover  if  he  has  been  guilty  of  contributory  negligence.^ 

At  what  age  a  child  may  properly  bo  allowed  to  go  on 
the  public  streets  unattended  becomes  a  question  of  great 
importance  in  suits  for  injuries  to  young  children,  where 
the  doctrine  of  the  imputed  negligence  of  their  parents  or 
guardians  is  invoked.  There  are  a  iiumber  of  cases  in 
the  reports  in  which  it  has  been  ruled  that,  as  a  matter 
of  law,  children  between  the  ages  of  one  and  a  half  and 
seven  years  were  not  sui  juris?    In  other  cases,  children 


KcbmsJca.  —  Huff  u.  Ames,  16  Neb. 

137;  40  Am.  Rep.  710. 
Fviwsylmnia.  —  Smith  v.  O'Connor, 

48  Ta.    St.   218;    86  Am.    Dec.  582; 

leiuisylvania  R.  R.  Co.   v.  Kelly,  31 

Pa.  St.  372;  Rauch  v.  Lloyd,  31   Pa. 

St.  .SnS;  72  Am.  Dec.  747;  Kay  v.  R. 

K.  Co.,   65  Pa.  St.  269;  3  Am.    Rep. 

G'.'S;  I'hilatlelphia  etc.   R.    R.    Co.  v. 

Long,  75  Pa.  St.  257;  Glassey  v.  R.  R. 

Co.,  57  Pa.  St.  172;  Philadelphia  etc. 

R.  11.  Co.  V.  Spearen,  47  Pa.  St.  300; 

80  Am.  Dec.  544;  Oakland  R.  R.  Co. 

(..   Fielding,   48  Pa.    St.    320;  North 

Pennsylvania  R.  R.  Co.  v.  Mahoney, 

57  Pa.   St.  187;   Erie  R.   R.   Co.   v. 

Sdmstor,    113  Pa.  St.   412;    57   Am. 
ll^'p.  471. 

Trnncs.ice.  —  Whirley  v.  Whiteman, 
I  Hodil,  010;  East  Tennessee  R.  R. 
Co.  r.  St.  John,  5  Sneed,  524;  73  Am. 
Dec.  5'.'4. 

Tr.ai.f.  —  Galveston  etc.  R.  R.  Co. 
v.  iloorc,  5'J  Tex.  64;  46  Am.  Rep. 
205. 

Vcmtont.  —  Robinson  v.  Cone,  22 
Vt.2i;{:  54  Am.  Dec.  67. 

Virginia.  —  Norfolk  etc.  R.  R.  Co.  v, 
Onnsliy,  27  (1-ratt,  455. 

Uiilii'l  S/.'(t<'ii.  —  In  Stout  V.  R.  R. 
Co.,  2  Dill.  298,  11  Am.  Law  Reg.  236, 
17  Wall.  057,  a  boy  of  six  was  injured 
on  ilefouilant's  turn-table.  Dundy,  J., 
ehargud  tlie  jury  against  the  doctrine 
of  imputed  iiOL;ligence  of  father  to 
cliiM  Tlic  jury  failing  to  agree,  on  a 
secdDtl  trial,  Dillon,  J.,  charged  the 
jury,  .stating  to  them  that  the  counsel 
for  the  defendant  "disclaim,  resting 


their  defense  on  the  ground  that  the 
plaintiff's  parents  were  negligent,  or 
that  the  plaintiff,  considering  his  ten- 
der age,  was  negligent. " 

•  Bellefontaine  R.  R.  Co.  r.  Snyder, 
24  Ohio  St.  070;  Isabel  v.  R.  R.  Co., 
60  Mo.  475;  Walters  v.  R.  R.  Co.,  41 
Iowa,  71;  Albertson  v.  R.  R.  Co.,  48 
Iowa,  292;  Koons  v.  R.  R.  Co.,  65 
Mo.  592;  O'Flaherty  v.  R.  R.  Co.,  45 
Mo.  70;  100  Am.  Dec.  343;  Glassey  v. 
R.  R.  Cd.,  57  Pa.  St.  172;  Pitt.slmrgh 
etc.  R.  II.  Co.  V.  Pearson,  72  Pa.  St. 
169;  Philadelphia  etc.  11.  R.  Co.  v. 
Long,  75  Pa.  St.  257;  Pennsylvania 
R.  R.  Co.  a  Zebe,  33  Pa.  St.  31 S;  37 
Pa.  St.  420;  Birmingham  v.  Dnrer,  3 
Brewst.  69;  Daley  "•  R.  K.  Co.,  26 
Conn.  591,  598;  68  Am.  Dec.  413; 
Bakimore  etc.  11.  R.  Co.  v.  Fryer,  30 
Md.  47;  Williams  v.  R.  R.  Co.,  60 
Tex.  205;  Pennsylvania  R.  R.  Co.  v. 
James,  8\h  Pa.  St.  194;  Pratt  Coal  Co. 
V.  Brawley,  83  Ala.  .371;  3  Am.  St. 
Rep.  751.  In  Cauley  v.  R.  11.  Co., 
95  Pa.  St.  398,  40  Am.  Ilup.  064,  the 
court  say:  "The  rule  i^  well  s(;ttled, 
and  is  sustained  by  reason  and  author- 
ity. Moreover,  it  is  demanded  by 
humanity.  Thei-e  are  many  unfeeling 
parents,  who  not  oidy  neglect  but 
maltreat  their  children.  It  would  be 
cruel  to  such  cliildren  to  lay  down  a 
rule  which  would  make  it  an  object 
for  unprincipled  parents  to  expose 
them  to  injury  and  death  upon  a  rail- 
road track. " 

»  Schmidt  ?J.  R.  R.  Co.,  23  Wis.  186; 
99  Am.  Dec.  158;  Mangam  v.  R.  R. 


§  1210 


NEGLIGENCE. 


2130 


of  eleven,  twc  Ivo,  thirteen,  and  fourteen  have  been  held  not 
incapublo  of  taking  care  of  tlioinsclves,'  But  where  tliere 
is  any  doubt  as  to  the  child  being  of  sullicient  age,  the 
question  should  be  submitted  to  a  jury.*  This  has  boon 
done  in  the  case  of  a  child  between  six  and  seven  years 
old,*  ten  years,*  eight  years, ^  nearly  seven  years,"  six 
years,  ^  live  and  one  half  years, ^  five  years,"  and  four 
years  and  seven  months."  So  it  has  been  held  a  question 
for  the  jury  whether  it  is  negligence  to  send  out  a  chill 
two  years  and  eight  months  old  under  the  care  of  another 
eight  years  of  age;"  one  three  and  one  half  years  old  in 
company  with  another  nine  years  of  age;*^  one  a  litlb 
over  three  years  in  company  with  another  between  nine 
and  ten;'^  one  four  years  and  five  months  old  in  company 
with  another  of  twelve  years  and  six  months;"  and  one 
six  years  of  age  in  company  with  another  of  ten;''^  a  boy 


Co.,  38  N.  Y.  4")5;  36  Barb.  230;  98 
Am.  Dec.  GO;  Kreig  v.  Wella,  1  E.  D. 
Smith,  7G:  Meeks  v.  R.  R.  Co.,  52 
Ca,l.  iiO'2;  Lehman  v.  R.  R.  Co.,  29 
Barb.  'J34;  McLaiu  v.  Van  Zanclt,  7 
.Tonus  &  S.  347;  IlartfielJ  ".  Roper, 
21  VVeud.  Clo;  34  Am.  Dec.  273; 
Pittsburgh  etc.  R.  R.  Co.  v.  Vining, 
27  lad.  513;  Cliicago  v.  Starr,  42111. 
174;  O'FIalierty  v.  R.  R.  Co.,  45  Mo. 
70;  100  Am.  Dec.  343;  Maacheck  v. 
R.  R.  Co..  3  Mo.  App.  000;  Toledo 
etc.  R.  R.  Co.  V.  arable,  88  111.  441; 
Wiight  V.  R.  R.  Co.,  4  Allen, 283;  Cal- 
lahan V.  Bean,  9  Allen,  401;  Evans- 
ville  etc.  R.  R.  Co.  v.  Wolf,  59  Ind. 
89;  Lafayette  etc.  R.  R.  Co.  v.  Huff- 
man, 28  Ind.  287;  92  Am.  Dec.  318; 
Jeffersonville  etc.  R.  R.  Co.  v.  Bowen, 
40  Ind.  545;  49  Ind.  154;  McGarry  w. 
Loomis,  03  N.  Y.  104;  20  Am.  Rep. 
510;  North  Pennsylvania  R.  R.  Co.  v. 
Mahoney,  57  Pa.  St.  187;  Pittsburgh 
etc.  R.  R.  Co.  V.  Caldwell,  74  Pa.  St. 
421. 

•  McMahon  v.R.R.  Co.,  33  N.  Y. 
642;  Downs  v.  R.  R.  Co.,  47  N.  Y.  83; 
Achteiiliagen  r.  VVatertown,  18  Wis. 
331;  80  Am.  Dec.  769;  O'Mara  y.  R. 
R.  Co.,  38  N.  Y.  445;  98  Am.  Dec. 
61;  Nagle  v.  R.  R.  Co.,  88  Pa.  St.  35; 


32  Am.  Rep.  413;  Stafford?;.  Rol)l)or9, 
115  III.  196;  Parrish  v.  Eden,  02  Wis. 
272. 

'^  2  Thompson  on  Negligence,   1182. 

^  Honogsberger  i'.  R.  R.  Co.,  1 
Keyes,  570;  33  How.  Pr.  195;  2  Abb. 
App.  378. 

*  Lovett  w.  R.  R.  Co.,  9  Allen,  557; 
Karr  v.  Parks,  40  Cal.  188. 

"  Drew  V.  R.  R.  Co.,  20  N.  Y.  49, 

«01dfield  V.  R.  R.  Co.,  14  N.  Y. 
310;  3  E.  D.  Smith,  103. 

'  Cosgrove  v.  Odgon,  49  N.  Y.  255; 
10  Am.  Rep.  .361. 

•  8  BarksduU  v.  R.  R.  Co.,  23  La. 
Ann.  180. 

»  Karr  v.  Parks,  40  Cal.  188. 

^0  Lynch  v.  Smith,  104  Mass.  53;  0 
Am.  Rep.  188;  St.  Paul  v.  Kuby,  8 
Minn.  154. 

"  O'Flahcrty  v.  R.  R.  Co.,  45  Mo. 
70;  100  Am.  Dec.  343. 

••'  Mulligan  v.  Curtis,  100  Mass.  512; 
97  Am.  Dec.  121. 

"  Ihl  V.  R.  R.  Co.,  47  N.  Y.  317;  7 
Am.  Rep.  450. 

"  East  Saginaw  City  R.  R.  Co.  v. 
Bohn,  27  Mich.  503. 

'*  Chicago  etc.  R.  R.  Co.  v,  Becker, 
76U1.25;  84111.483. 


2137 


CONTUinUTORY   NEOLIQENCE. 


§  1210 


of  four  in  charge  of  a  sister  of  eleven;*  a  child  of  two  in. 
tho  care  of  a  brother  of  eight.'' 

Wliore  tho  child  has  escaped  from  tho  control  of  the 
piiroiit,  it  is  a  question  for  tlie  jury  whether  the  means 
cmi)loyed  for  restraining  the  child  were  reasonably  suf- 
ficeiit.*  Tho  condition  in  life  and  means  of  tho  parent 
are  relevant,  upon  the  degree  of  care  which  the  law  will 
demand  of  him  under  the  circumstances.*  The  degree  of 
care  which  parents  are  bound  to  take  to  prevent  tho  escape 
of  tlicir  children  from  their  immediate  supervision  may 
depend  upon  tho  condition  and  resources  of  the  parents.' 


'  CoUiiia  V.  R.  R.  Co.,  142  Mass. 
301 ;  r)()  Am.  Rep.  (575. 

-J31is.-)  V.  South  lladley,  145  Masa. 
91;  1  Am.  St.  Rep.  441. 

^  Miiiii^am  V.  R.  R.  Co.,  38  N.  Y. 
4Jj;  1)3  Am.  Doe.  GO;  Fallon  v.  R.  R. 
Co.,  04  X.  Y.  13;  Prendogast  v.  R.  R. 
Co.,5SN.  Y.052;Bahreul)urgIiw.  R.  R. 
Co.,  50  N.  Y.  052;  Pittsburgh  etc.  R.  R. 
Co.  r.  Bumstead,  48  111.  221 ;  95  Am. 
Dec.  o;W;  Pittsburgh  etc.  R.  R.  Co. 
V.  Pcar.soii,  72  Pa.  St.  1(59. 

*  Chicago  V.  Major,  18  111.  349;  G8 
Am.  Due.  553;  Chicago  etc.  R.  R.  Co. 
V.  (ticgniT,  58  111.  226;  Chicago  v. 
Hesiug,  8;{I11.  204;  25  Am.  Rep.  378. 
A  mollicr  who  leaves  a  child  four 
years  of  age  with  his  sister  fourteen 
years  of  age,  wlio  is  shown  to  be  in- 
telligent and  afifcctionate.  while  tho 
mother  visits  a  neighbor,  is  not  guilty 
of  contributory  negligence:  Pittsuurgh 
etc.  K.  11.  Co.  V.  Bumstead,  48  111. 
221;  !),-)  Am.  Dec.  539. 

^  Kay  ('.  R.  R.  Co.,  65  Pa.  St.  269; 
3  Am.  Ucp.  628;  Philadelpiiia  etc.  R. 
R.  Co. )'.  Long,  75  Pa.  St.  257;  Walters 
V.  R.  R.  Co.,  41  Iowa,  71;  Pittsburgh 
etc.  R.  R.  Co.  V.  Pearson,  72  Pa.  St.  169. 
But  iu  Hagau's  Case,  5  Dill.  96,  Dillon, 
J.,  said:  "This  distinction  may  bo 
doubted;  for  there  is  not,  in  this  coun- 
try, one  rule  of  law  for  the  rich,  and  a 
ditfereut  rule  for  the  poor.  It  extends 
its  protecting  shield  over  all  alike. 
The  common  law  is  justly  distinguished 
for  its  solicitude  for  the  public  safety, 
and  any  person  or  corporation  that 
illegally  imperils  the  lives,  limbs,  or 
health  of  tho  people  is  liable.  The 
tuuuel  fiompany  haa  no  more  right,  by 


having  a  dangerous  excavation  in  tho 
public  ways,  unnecessarily  to  impose 
upon  tho  rich  the  duty  to  employ  an 
attendant  for  their  children  than  to 
impose  upon  tho  poor  tho  impracti- 
cable duty  of  never  allowing  their 
children  to  escape  from  sight,  lest 
they  may  bo  injured  by  its  wrongful 
and  illegal  act."  In  a  Missouri  case 
Wagner,  J.,  said:  "People  in  the  situ- 
atio-.i  in  life  of  those  who  had  the 
custody  of  tho  child  cannot  always 
attend  t^  it  strictly;  and  if  it  escapes 
from  them  unawares,  it  must  not  bo 
injured  simply  because  it  so  escapes  ": 
Isabel  V.  R.  R.  Co.,  60  Mo.  483.  In 
another  case  tho  same  judge  said: 
' '  To  say;  that  it  is  negligence  to  per- 
mit a  child  to  go  out  to  play,  unless 
it  is  accompanied  by  a  grown  attend- 
ant, would  bo  to  hold  that  free  air 
and  exercise  should  only  be  enjoyed 
by  the  wealthy,  who  are  able  to  em- 
ploy such  attendants,  and  would 
amount  to  a  denial  of  these  blessings 
to  the  poor":  O'Flaherty  v.  R.  R. 
Co.,  45  Mo.  74.  In  a  case  very  simi- 
lar to  this,  another  very  learned  and 
capable  judge  used  tho  following 
language:  "The  doctrine  which  im- 
putes the  negligence  of  the  parents  to 
tho  child  in  such  a  case  as  this  is  re- 
pulsive to  our  natural  instincts,  and 
repugnant  to  the  condition  of  that 
class  of  persons  who  have  to  maintain 
life  by  daily  toil.  It  is  not  the  case 
where  the  positive  act  of  a  parent 
or  guardian  has  placed  a  child  in  a 
position  of  danger  necessarily  requir- 
ing tho  care  of  the  adult  to  bo  con- 
stantly exercised,   as  where  a  parent 


§  1210 


NEOLIOENCE. 


21o\S 


Tlio  character  of  the  place  where  the  child  is  permitted 
to  go  is  relevant  on  the  question  of  the  parent's  nci;!!- 
gonco.'  So  evidence  that  the  infant  is  possessed  of  ninic 
than  ordinary  intelligence,  activity,  and  discretion  lor 
one  of  its  years  is  admissible.^  If  a  child,  though  non 
8ui  juris,  lias  not  committed  or  omitted  any  act  wliich 
would  constitute  negligence  in  a  person  of  full  discretion, 
an  injury  by  the  negligence  of  another  cannot  bo  do- 
fended  on  the  ground  of  contributory  negligence  of  tlio 
parent  or  custodian  in  not  restraining  the  child;' 

Illustrations.  —  A  boy  was  riding  with  his  motlicr  in  a 
carriage  driven  by  her  servant.  Tlio  carriage  was  struck  hy  a 
train.  The  driver  was  negligent  in  not  looking,  and  the  inotlior 
in  not  directing  the  driver  to  look.  Held,  that  their  ncgli'^fcnco 
was  the  boy's  negligence,  and  that  ho  could  not  recover  against 
the  railroad  company:  Slater  v.  R.  R.  Co.,  71  Iowa,  2U'.).  A 
father  having  passed  through  a  space  of  fifteen  or  twenty  Inc^lios 
wide  l)etwoon  the  rear  cars  of  two  freight  trains  standing  on 
a  sido-tnick,  within  five  or  ten  minutes  afterwards  roturncd 
in  company  with  his  daughter,  between  eight  and  nine  years  of 
ago.  As  the  father  and  daughter  approached  within  live  or 
six  foot  of  tlie  opening,  in  answer  to  an  inquiry  from  the  daup;h- 
ter  as  to  how  ho  got  through,  the  father  pointed  out  the  open- 
ing, and  in  iiis  immediate  view  the  daughter  proceeded  to 
follow  his  directions  in  passing  through  the  opening,  ami  was 
injured  by  the  cars  going  together,  the  cars  being  moved  hy  an 
engine  that  was  about  starting  one  of  the  trains  from  the  side- 
track.    This  opening  was  a  few  feet  east  of  the  east  line  of  a 

takes   n   child  into  the  cars,  and,  by  '  Karr  v.   Parks,  40  Cal.    ISS;  Clii- 

his  neglect,  suffers  it  to  be  injured  by  cago  etc.  R.  R.  Co.  v.  .Starr's  Ailm'r, 

straying  oti'  upon  the  platform.     But  42  111.  174;  Pittsburgh  etc.  11.  K.  Co. 

here  a  motlier,    toiling  for  her  daily  y.  Vining'a  Adm'r,  27Ind.  5i;i;  IL*  Am. 

bread,  and  havin"  done  the  best  she  Dec.  209. 

couM   in   the  midst  of  her  necessary  '^  Oldfield  v.   R.  R.  Co.,  14  X.  Y, 

employment,    loses  sight  of  the  child  310;    BarksduU  t\  R.  R.  Co.,  'J,i  La. 

for  an  instant,  and  it  strays  upon  the  Ann.  180;  Lynch  v.  Smith,  104  .Miss. 

track.     Witli  no  means  to  provide  a  53;  6  Am.  Rep.  188. 

servant  for  her  child,  why  should  the  ^  McG-arry  v.  Loomis,  (53  N.  Y.  104; 

necessities  of  her  position  in  life  at-  20  Am.  Rep.  510;  Ihlw.  R.  K.  Co.,  47 

tauh  to  tlio  child,  and  cover  it  with  N.  Y.  317;  7  Am.  Rep.  450;   Laiinen 

blame  ?    When    injured    by  positive  v.  R.  R.  Co.,  44  N.    Y.  459;  4(i  ISarb. 

negligence,  why  should  it  be  without  204;   O'Brien    v.   McGlincliy.  tlS  iMe, 

redress?    A  negligent  wrong  is  done;  552;    Lynch  v.    Smith,  104  Mass.  52; 

it  is   incapable  of  contributing  to  it;  G  Am.  Rep.  188;    Pittsburgh  etc.  K. 

then  why  should  the  wrong  not  bo  R.  Co.  v.  Bumstead,   48  111.  2l.'l;  95 

compensated  ?"  Kay  v.  R.  R.  Co.,  05  Am.  Dec.  539. 
Pa.  St.  2G9;  3  Am,  Rep.  628., 


2109 


CONTRIBUTORY   NEOLIOKNCB. 


§  1210 


fitroot  crossing.    One  of  tho  trains  entirely  Ijlockod  up  tho  ptroct, 
ami  it  WUH  not  shown  that  tho  unm  in  charj^n  of  th(!  train  knew 
tli;it  any  ono  was  atti!ni))ting  to  paHS  throu^li  tlxs  opening.     In 
ail  action    hy  tlio   dau|^htt;r   for   the   injuries  Ku.staincd,  licldy 
lh;it  tlio  nogligoneo  of  the  father  was  ii<Ji)utahh)  to  the  child: 
Stilhnii  V.  A'.  A'.  Co.,  07  Mo.  071.     IMaintid",  a  eWild  nini!  years 
old,  was  nuido  sick  by  the  escape  of  giis  in  lier  fatiu.'r'.s  house. 
Tlu'  faets  were  these:  Ahout  the  middle  of  tho  day  the  father 
(lotc'cted  the  odor  of  gas  in  his  residence,  of  which  the  iigent  of 
the  defendant  was  sul)8equently  notified,  who,  late  in  tlx;  day, 
discovered  the  leak  to  he  in  the  street;  consp(pieiitly  it  could 
not  l)e  reached,  without  considerahlo  inconvenience,  until  tho 
next  diiy.     During  the  niglit  the  gas  escaped  in  largi;  ([uan- 
titics.  hut  the    parent  took  no  other    measures  to  protecit  tho 
pUiiiitifT  than  hy  twice  visiting  the  plaintiff's  sleeping-room  and 
iiirri'asing  tho  ventilation,  although  he  himself  was  made  sick 
In"  ihe  <'scapo  of  tho  gas.     Early  in  tho  morning  ho  found  tho 
plaintiff  on  the  floor  of  her  room,  nearly  insensible,  and  found 
that  she  had  been  vomiting  from  the  effects  of  the  gas.     JIdd, 
that  the  negligence  of  the  father  was  imputable  to  the  child: 
IlnllD  V.  Giis  Co.,  8  Gray,  123;  01)  Am.  Dec.  2;]3.     The  plaintifT 
was  a  cliild  twelve  years  of  age.     A  ditcli  dug  by  tho  father's 
iiindlord,  by  tho  side  of  their  liouso,  for  drainage  purposes,  ex- 
U'lulud  into  tho  street.     There  was  no  way  to  go  from  the  house 
to  the  privy  used  therewith,  without  either  crossing  tho  ditch 
or  passing  around  that  end  of  it  which  was  in  the  street.     On 
a  very  tlark  night,  the  phiintifF,  while  attempting  to  reach  tho 
Wiiter-closet  by  passing  around  tho  end  of  the  ditch  upon  tho 
highway,  fell  into  the  ditch  and  was  seriously  injured.     In  an 
action  against  the  town  for  this  injury,  held,  that,  as  the  fatlier 
had  suffered  the  ditch  to  remain  open  for  several  weeks  before 
the  accident,  his  negligence  was  such  that  it  must  1)0  imputed 
to  the  plaintiff,  so  as  to  preclude  a  recovery:  Leslie  v.  Lcirinton, 
G'2  Me.  4G8.     The  father  of  the  plaintiff,  a  child  two  years  and 
four  luonths  old,  had  taken  him  across  tho  street  to  purchase 
some  candy  for  him.     After  making  the  purchase,  the  father 
wont  with  tho  child  to  the  door  of  tho  shop,  looked  up  and  down 
tho  street,  and  seeing  no  horse,  person,  or  other  impediment  in 
tho  street,  directed  the  plaintiff  to  go  across  the  street  to  his 
home.    The  street  was  about  eigiiteen  feet  wide  between  tho 
curb-.stoncs,  and  the  shop  in  question  was  not  directly  opposite 
the  door  of  the  house  of  the  plaintiff's  father,  but  about  thirty 
feet  farther  up  the  street.     Having  given  the  above  direction, 
the  father  turned  away,  without  watching  to  see  whether  the 
child  crossed  the  street  in  safety.     Within  two  minutes  the 
child,  while  in  the  street,  was  run  down  by  a  baker's  cart  owned 
by  the  defendant,  and  driven  by  Lim  down  the  street  upon  a 


§1210 


NEGLIGENCE. 


2140 


gallop.  Held,  that  the  father  was  guilty  of  negligence,  and  the 
plaintiff  could  not  rfover:  Callahan  v.  Bean,  9  Allen,  401.  A 
child  strayed  from  home  without  th  ^  knowledge  or  consent  of 
its  parents,  and  got  upon  a  railroad  track,  where  it  was  in- 
jured. Its  father  was  away  from  Ijonie  at  the  time,  and  its 
mother  had  charge  of  an  infant  and  had  no  servant.  ]IrJil 
that  the  father  was  not  chargeable  with  contributory  negligence: 
Frick  V.  E.  11.  Co.,  75  Mo.  542.  An  adult,  having  the  euro  of  a 
girl  eight  years  old,  left  a  horse-car  with  her  and  went  innue- 
diately  upon  an  adjacent  horse-car  track,  without  having  Imld 
of  the  child,  and  without  giving  attention  to  possible  dan<rer, 
except  in  one  direction.  The  child  was  run  over  by  a  car  com- 
ing from  ilio  other  direction.  Held,  that  the  guardian  was 
chargeable  with  contributory  negligence:  Reed  v.  R.  R.  Co..  ;J4 
Minn.  557.  A  railroad  tunnel,  at  a  point  where  it  was  un- 
covered, and  w'thin  the  line  of  a  public  street,  was  left  un- 
guarded, expcding  a  perpendicular  wall  fourteen  feet  in  depth 
below  the  surface  of  the  street.  The  plaintiff,  a  boy  of  fuur 
years  of  age,  strayed  away  from  his  home,  about  two  blocks  dis- 
tant, under  circumstances  not  disclosed  b}'  the  testimony,  frll 
into  this  excavation,  and  sustained  a  fracture  of  the  thigh-bone. 
His  parents  were  poor  and  unable  to  employ  a  servant  to  look 
-^ftcr  him.  Held,  that  the  plaintiff  was  in  law  incapable  of 
negligence,  and  that  the  burden  of  showing  contributory  negli- 
gence on  tho  part  of  the  parents,  such  as,  imputed  to  tlie  i)eti- 
tioner,  would  bar  a  recovery,  rested  with  the  respondent^: 
Ildgan's  C<n<r,  5  Dill.  9G.  The  ijlaintitf,  a  child  three  or  four 
years  old,  was  locked  in  the  liouse,  but  lost  sight  of  liy 
the  person  l.Mving  him  in  charge,  for  about  twenty  miiiutcs. 
His  only  means  of  access  to  the  street  was  by  climbinu  out 
of  an  open  window,  which  only  came  within  four  feet  of  the 
floor.  There  w;is  no  evidence  that  he  had  ever  before  got  out 
of  this  wi.idow,  or  attempted  to.  Held,  that  the  failure  to  guard 
this  aperture  did  not  warrant  the  conclusion,  as  matter  of  laiv, 
that  the  parent  was  guilty  of  negligence:  Mangain  v.  /.'.  h'.  C"., 
38  N.  Y.  455;  98  Am.  Dec.  06.  Tiie  plaintift',  a  child  five  yoim 
of  age,  was  j)ermitted  by  her  elder  sihuer  to  accovipany  another 
child,  eleven  years  of  age,  upon  a  walk.  During  their  winidcr- 
infjS,  the  i)air  got  upon  a  street-car,  in  leaving  which  the  plain- 
tiff was  injured  by  the  concurrent  negligence  of  the  defomiant'.s 
driver  and  the  child  having  the  plaintiff  in  charge.  JIcliL  that 
the  negligence  of  her  companion  could  not  be  imputed  to  the 


plaintiif:  Pil'»hiini  etc. 


R. 


Co.  V.  Caldwell,  74  Pa.  .^t.  4:'l, 


A  mother  allowed  her  child,  seven  years  old,  to  servi'  the 
drivers  and  conductors  of  a  street-railroad  with  water  upon  the 
cars,  for  a  small  compensation.     While  so  employed  the  child 


2141 


CONTRIBUTORY  NEGLIGENCE. 


§1211 


was  Injured  by  the  alleged  iiogligence  of  the  company.  Held, 
th.it  the  mother  was  guilty  of  such  contributory  negligence  as 
barred  her  i-ecovery  as  administratrix  of  the  child:  Sviith  v. 
K.  R.  Co.,  92  Pa.  St.  450;  ^7  Am.  Rep.  T05. 


§  1211.  Imputed  Negligence  in  Other  Cases, — Tlie 
doctrine  of  imputed  negligence  has  been  applied  in  some 
case:^  wiiero  a  passenger  luis  been  injured  by  the  concur- 
rciu  negligence  of  a  third  person  and  of  the  carrier  in 
whose  charge  he  was  riding  at  the  time.* 

Illustuations.  —  R.,  plaintiff's  intestate,  was  riding  on  a 
public  highway  with  her  husband,  who  was  dri^^ng.  In  at- 
tempting to  cross  defendant's  tracks  at  a  crossing,  they  were 
both  killed  by  a  collision  with  a  passing  train.  In  an  action 
to  recover  damages,  it  appeared  that  at  this  crossing,  in  the 
absence  of  obstructions,  a  train  upon  the  freight-track,  which 
came  first,  or  upon  the  passenger -track,  which  was  seventy  feet 
distant  from  the  freight-track,  was  visible  for  a  distance  of  one 
or  two  miles.  In  approaching  the  freight-track  the  husband 
stopped  his  horse  when  a  hundred  or  more  yards  away,  and 
then  again  within  fifteen  yards  of  the  crossing  on  account  of 
the  passage  of  a  freight  train.  As  soon  as  it  had  passed,  he 
crossed  the  freight-track,  and  in  an  endeavor  to  cross  the  passen- 
ger-track the  collision  occurred.  Ther  «vas  no  proof  as  to  the 
manner  of  the  accident,  except  that  the  worse  was  seen  jumping 
to  get  across,  and  did,  in  fact,  escape.  The  plaintiff  was  non- 
suited. Held,  error;  that  if  the  husband  was  negligent,  his 
negligence  could  not  be  imputed  to  the  wife;  that  while  she 
had  no  right,  because  her  husband  was  driving,  to  omit  r-^o son- 
able  and  prudent  efforts  to  see  for  herself  that  the  crossii-'',  was 
safe,  she  was  not  bound  to  suspect  a  purpose  on  the  part  of  her 
husband  to  cross  until  she  saw  it  being  executed;  that  the  pre- 
sumption was,  they  both  saw  the  approaching  train,  and  she 
was  not  blamable  in  thinking  and  expecting  he  would  stop 
again;  that  when  she  saw  he  was  about  to  make  the  attempt  to 
cross,  as  they  must  have  been  then  very  close  to  the  track,  she 
was  not  bound  to  jump  from  the  wagon,  seize  the  reins,  or  in- 
terfere with  the  driver;  that  even  if  she  did  not  entreat  him  to 
stop,  but  sat  silent,  it  does  not  follow,  as  matter  of  law,  that  she 
was  negligent,  as  she  might  not  have  had  time  or  might  have 
been  paralyzed  from  fright,  and  the  question  was  one  of  fact 

for  a  jury:  Iloag  v.  R  R.  Co.,  Ill  N.  Y.  199. 

^  See  post.  Division  III.,  Common  Carriers. 


§1212 


NEGLIGENCE. 


2142 


§  1212.    Burden  of  Proof  of  Contributory  Negligence. 

— In  a  number  of  states  it  is  held  tliat  in  order  to  make 
out  a  'prima  facie  case  the  plaintiff  must  not  only  show 
negligence  on  the  part  of  the  defendant,  but  he  must  also 
show  that  he  was  in  the  exercise  of  due  care  in  respect  to 
the  occurrence  from  which  the  injury  arose,'  In  others 
the  rule  is,  that  the  negligence  of  the  plaintiff  contributiii'^ 
to  the  injury  is  a  matter  of  defense,  and  that  the  onus  of 


^  Connectinit. — Beers  v.  R,  R.  Co., 
19  Conn.  utiO;  Park  v.  O'Brien,  2\i 
Conn.  3:i!);  Fox  v.  Glastenbury,  29 
Conn.  204. 

lUinoi.-i.  —  Aurora  Branch  R.  R.  Co, 
V.  Grimes,  13  111.  ,585;  Dyer  v.  Talcott, 
10111.  300;Griloiiaotc.  R.  R,  Co.?-.  Fay, 
IG  111.  uaS;  0;{  Am.  Dec.  323;  Chicago 
V.  :\lajor,  18111.  \Wd;  (i8  Am.  Deo.  553; 
Galena  etc.  li.  R.  Co.  v.  Jacobs,  20 
111.  478;  Chicago  etc.  R.  R.  Co.  v. 
Hazzanl,  2(3  III.  373;  Chicago  etc.  R. 
R.  Co.  V.  (Jrcgory,  58  111.  272;  Kep- 
perly  r.  RanLsden,  83  111.  354;  Galena 
etc.  R.  R.  Co.  /'.  Yarwooil,  17  111.  509; 
(55  Am.  Dec.  083;  Chicago  etc.  R.  R. 
Co.  V.  Dewey,  20  111.  255;  79  Am.  Dec. 
374;  Chicago  etc.  R.  R.  Co.  v.  Freeman, 
6  111.  A  pp.  008. 

IinliiiiHt. —  Cincinnati  etc.  R.  R.  Co, 
?•.  Butler,  103  Ind.  31;  Evansvillc  etc, 
R.  R.  Co.  V.  Dexter,  24  Ind,  411; 
Evansville  etc.  R.  R.  Co.  v.  Hiatt,  17 
Ind.  102;  Indiana  etc.  R.  It.  Co.  v. 
Greene,  100  Ind.  279;  55  Am.  Dec, 
730;  Toledo  etc.  R.  R.  Co.  v.  Branna- 
gaii,  75  Ind.  490;  Steveua  v.  Gravel 
Co.,  99  Ind.  .392. 

loii-d. —  Rnscli  V.  Davenport,  0  Iowa, 
443;  Rc_;  iioMs  ('.  If  indman,  32  Iowa, 
140,  148;  i'laster  v.  R.  R.  Co.,  35 
Iowa,  44^.);  (.'arlin  v.  R.  R.  Co.,  37 
Iowa,  310;  Muldowney  v.  R.  R.  Co., 
39  Iowa,  015;  30  Iowa,  402;  .32  Iowa, 
17();  PattLr.son  v.  R.  R.  Co.,  38  Iowa, 
279;  Way  v.  R.  R.  Co..  40  Iowa,  ,341; 
Donid.lsoti  /'.  R.  R.  Co.,  18  Iowa,  280; 
87  Am.  Dec.  ,390;  Burns  r.  R.  R.  Co., 
C9  Iowa,  450;  58  Am.  Rep.  227.  But 
it  may  he  inferred  from  eircnmstances, 
without  iieing  directly  shown:  Nelson 
V.  R.  R.  Co.,  .38  Iowa,  504;  Murphy 
r.  K.  R.  Co.,  45  Iowa,  001;  38  Iowa, 
C39;  Raymond  ;•.  R.  R.  Co.,  05  Iowa, 
152. 


Mninr.  —  Gleason  ?\  Bremen,  ,'iO  Me 
222,  224;  Buzzell  v.  Laconia  Mf  r.  (^'^  ' 
48  Me.  113;  77  Am.  Dec.  212?  sJe 
also  Dickey  v.  Maine  Tel.  Co.,  40  Me 
483;  Perkins  v.  R.  R.  Co.,  29  :ic.  :',()•. 
50  Am.  Dec.  589;  Merrill  v.  Ilainpdeii,' 
2(5  Me.  234;  Kennard  v.  Burtmi  "j 
Me.  39;  43  Am.  Dec.  249;  Bons„ii".. 
Titcomb,  72  Me.  31;  Lesan  r.  It.  ]{' 
Co.,  77  Me.  85.  It  may  be  iiifcrixil 
from  circumstances;  French  r.  Biuiis- 
wick,  21  Me.  29;  38  Am.  Dec.  2d0' 
Foster?'.  Dixfield,  18  Me.  3S0. 

Mas^drltuHclts. —  Lane  v.  Croudiic,  12 
Pick.  177;  Adams  ?•.  Carlisle,  21  rick, 
140;  Bigelow  v.  Rutland,  4  Cush.  247; 
Boswortii  r.  Swansey,  lO^Iet.  3ti;),  IJGj; 
43  Am.  Dec.  441 ;  Parker  ?•.  Adiiu?;,  12 
Met.  415,  417;  40  Am.  Dec.  0',)4;  Luuag 
V.  R.  R.  Co.,  0  Gray,  04;  (5(5  Am.  Dec. 
40(5;  R(tbinson  v.  R.  R.  Co.,  7  l!i;iv 
92;  Callahan  v.  Bean,  9  All.n,  4ij'l'; 
llickey  /-.  R.  R.  Co.,  14  Alh  n,  421), 
431;  Gaynor  v.  R.  R.  Co.,  ]UI>  Mass, 
208;  97  Am.  Dec.  90;  Murpliy  /•,  Dwiiie, 
101  Mas.-?.  455;  3  Am.  Rep.  390;  Allyii 
?'.  R.  R.  Co.,  105  Mass.  77;  La:ic  c, 
Atlantic  Works,  107  Mass.  101;  (;:,li;i. 
gan  ?•.  R.  R.  Co.,  1  Allen,  187;  79  Am, 


Di 


(-'.); 


Warren   ?-.    R,  R,    C 


8 


Allen,  227;  85  Am.  Dec.  700;  (iiliiiiin 
V.  R.  P.  Co.,  10  Allen,  233;  87  Am, 
Dec.  035;  15utterfield  r.  R.  R.  Co.,  10 
Allen,  532;  87  Am.  Dec.  078.  Ami 
may  be  inferred  without  dii  ecu  pi-duf: 
Mayo  ?'.  R.  R.  Co.,  1(J4  .Ma.ss.  lliT; 
Prentiss  r.  Bo.ston,  112  Ma^s.  4.'!; 
Hinckley  v.  R.  R.  Co.,  120  M;i>>.  2.1:, 
202. 

Mii'lihl'i)}.  — Detroit  et:c',  \\.  11,  Co, 
r.  Van  Steinberg,  17  Mieh.  99. 

Mls,~:i.ix!ppi.  --Vieksburg  /•.  Ihnues- 
sy,  54  Miss.  391;  28  Am.  Kep,  3J4 

yort/i  Carolina. — Owens  r.  K.  R. 
Co.,  88  N.  C,  502. 


2143 


CONTRIBUTORY   NEGLIGENCE. 


1212 


proving  it  is  on  the  defendaii ' .'     In  New  York^  and  other 
states,  the  decisions  are  contradictory  and  irreconcilable.^ 


',-1  biliiima.  — Smoot  v.  Wetuinpka,  24 
AJ:i.  II-;  Soiils  V.  Edmonilsou,  71  Ahi. 
5U'.i;  Tluunpsou  v.  Duncan,  70  Ala. 
3;il;  Mdiitgoiiiory  etc.  R.  R.  Co.  v. 
Chanil'oi-s,  79  Ala.  .338. 

ArhuiMUi.  —  Texas  etc.  R.  R.  Co.  v. 
On;  40  Ark.  182;  Little  Rock  etc.  R. 
11.  Co.  V.  Atldna,  40  Ark.  4'J.S;  Little 
Kixk  otc.  K.  11.  Co.  V.  Everett,  48  Ark. 
3:i;j;  ;}  Am.  St.  Rep.  230;  Little  Rock 
etc.  U.  R.  Co.  IK  Eul)auk3,  48  Ark. 
4'-i;  3  Am.  St.  Rep.  245. 

( '  il'/iini'd.  —  Cay  v.  Winter,  34  Cal. 
15:!,  iiJh  Robinson  v.  R.  11.  Co.,  48 
Cal.  4U'.l,  4-J();  McQuilkeu  y.  R.  II.  Co., 

50  Cal.  7;  xMcDougail  v.  R.  R.  Co.,  63 

c.il.  4:;i. 

K'iii<  ■  Kansas  etc.  R.  R.  Co.  v. 
ruiiitcr,  1  ■  u  87;  9  Kan.  020;  St. 
Lniis  etc.  iv  R.  Co.  v.  Weaver,  35 
Kan.  412. 

KnifHck;/.  — Paducah  etc.  R.  R.  Co. 
)  '  .'  12  Bush,  41;  Louisville  etc. 
iy.,iuii  ('•  .  V.  Mu.')liy,  9  Bush,  522. 

M<  'i'md.  —  Fi  >ch  V.  R.  R.  Co.,  39 
Md.  574;  Irwin  v.  .'prigs,  0  Gill,  200, 
2011;  4o  Ain.  Dec.  007;  Baltimore  v. 
Marriott,  U  Mel.  100;  County  Com.  of 
rriuco  ( i  L'orge  Co.  v.  Burgess,  01  MJ. 
21). 

ifiUK'sotd.  —  Hocum  v.  Weitherick, 
22  Minii.  152. 

J/w.m)h;7.  — Thompson  v.  R.  R.  Co., 

51  .Mo.  I'JO;  11  Am.  Rep.  443;  llicks 
V.  K.  U.  Co.,  05  Mo.  34;  64  Mo.  430; 
Soliuurinaa  v.  R.  R.  Co.,  3  Mo.  App. 
50.");  Pxie-^cliing  v.  Gas  Co.,  73  Mo. 
21U;  :W  Am.  Rep.  503;  Thorpe  v.  R. 
R.  Co.,  SO  Mo.  050;  58  Am.  Rep.  120; 
O'C.Muior  V.  R.  R.  Co.,  94  Mo.  150;  4 
Am.  .St.  Rep.  304. 

Nciv  Jcr-ici/.  — New  Jersey  Ex- 
press Co.  V.  Nichcls,  32  N.  J.  L.  100; 
31!  N.  J.  L.  434;  97  Am.  Dec.  722; 
Diuaiit  V.  Palmer,  29  N.  J.  L.  544; 
Muoru  r.  11.  R.  Co.,  24  N.  J.  L.  208. 

l'x'uii<iilrnHia. — Beatty  v.  Gilniore, 
IG  Pa.  ,St.  403;  55  Am.  Dec.  514;  Erie 
r.  Sciiwiiigle,  22  Pa.  St.  384;  00  Am. 
Dee.  87;  I'onnsylvania  Canal  Co.  v. 
Btiiiky,  (iO  Pa.  St.  30;  Bush  v.  John- 
st(,ii,  2:'.  Pa.  .St.  209;  Hays  v.  Gallagher, 
72  Pa.  ,St.  130;  Allen  v.  Willard,  57 
I'a.  .St.  374;  .Mallory  v.  Griffey,  85  Pa. 
^l.Jr,:^^  Weiss  V.  R.  R.  Co.,  79  Pa.  St. 
387;  IVuusylvauia  etc.  R.  R.  Co.  v. 


Weber,  76  Pa.  St.  157;  18  Am.  Rep. 
407. 

Texas.  —  Dallas  etc.  II.  R.  Co.  v. 
.Spicker,  01  Tex.  427;  48  Am.  Rep. 
297;  Houston  etc.  R.  ll.  Co.  v.  Cow- 
ser,  57  Tux.  293, 

Vvrr.tout.  —  Hill  r.  Now  Haven,  37 
Vt.  501;  88  Am.  Dec.  01.'}. 

Wi^co)}.vn.  —  Pridcaux  r.  Mineral 
Point,  43  Wis.  513,  524;  2S  Am.  Rep. 
5.58;  Hoyt?;.  Hudson,  41  Wis.  105;  22 
Am.  Rijp.  714;  Aclitenhagen  r.  Water- 
town,  18  Wis.  331;  80  Am.  Dec.  709; 
Potter  V.  R.  R.  Co..  20  Wis.  533;  91 
Am.  Dec.  444;  22  Wi.s.  015;  21  Wis. 
372;  Milwaukee  etc.  R.  R.  Co.  /'.  Hun- 
ter, 11  Wis.  100;  78  Am.  Dec.  099; 
overruling  the  contrary  doctrine  in 
Dressier  v.  Davis,  7  \Vis.  572,  and 
Chamberlain  v.  R.  R.  Co.,  7  Wis.  427, 
431. 

''■  The  plaintiff  must  prove  the  ab- 
sence of  contribatory  negligence  on 
his  part:  Warner  v.  R.  R.  ('o.,  44  N. 
Y.  405;  reversing  45  B.ub.  2'.)".);  Besie- 
gel  V.  R.  R.  Co.,  14  Abb.  Pr.,  N.  S., 
29;  Curran  v.  Warren  etc.  Mfg.  Co., 
30  N.  >Y.  153;  Suydam  v.  R.  R.  Co., 
41  Barb.  375;  De  BjuudcLti  r.  Mau- 
dlin, 1  Ildt.  213;  Burke  v.  R.  R.  Co., 
34  How.  Pr.  239;  H()ll)rook  r.  R.  R. 
Co.,  12  N.  Y.  230;  44  Am.  Doc.  502; 
10  Barb.  113;  Spencer  v.  R.  K.  Co.,  5 
Barb.  337;  Ilvan  c.  R.  R.  Co.,  1  .Jones 
&  S.  1.37;  Gilfe.spiew.  Nowburuh,  54  N. 
Y.  408,  471;  Hart  v.  R.  R.  Co.,  84  N. 
Y.  50;  Jones  v.  R.  R.  Co.,  10  Abl).  N. 
C.  200.  But  see  Johnson  v.  R.  R.  Co. , 
20  N.  Y.  05;  75  Am.  Dec.  375;  0  Uuer, 
633;  5  Duer,  21;  Rol)in.son  r.  R.  R. 
Co.,  65  Barb.  140;  Hackfoed  /•.  R.  R. 
Co.,  6  Lans.  381;  43  How.  Pr.  222; 
.Si|uire  v.  R.  R.  Co.,  4  ,lt)ucs  iS:  .S.430; 
Button  V.  R.  R.  Co.,  18  N.  Y.  248; 
Leo  V.  Gas  Light  Co.,  98  N.  Y.  1 15. 

3  Lester  v.  Pitt.sford,  7  Vt.  158; 
Barber  v.  Essex,  27  Vt.  02;  Hyde  v. 
Jamaica,  27  Vt  443;  Hill  i\  New 
Haven,  37  Vt.  .501;  88  Am.  Dec.  613; 
Walker  v.  Westlield;  39  Vt.  240;  Bo- 
veo  ('.  Danville,  53  \"t.  ISI!;  Moore  (». 
Shreveport,  3  La.  Ann.  645;  Walker 
V.  Herron,  22  Tex.  55,  01;  Little  Mi- 
ami R.  R.  Co.  V.  Stevens,  20  Ohio, 
4J5,  417. 


§1212 


NEGLIQENCE. 


2144 


In  short,  it  seems  that  where  the  courts  have  decided  tliat 
the  buTden  of  proof  is  on  the  plaintiff  to  show  duo  care 
on  his  part,  they  have  also  held  (where  the  point  has  been 
made)  that  this  proof  need  not  be  direct,  but  may  bo  in- 
ferred  from  the  circumstances  attending  the  occurrence 
causing  the  injury;  and  in  those  states  where  the  doctviiio 
obtains  that  contributory  negligence  on  the  part  of  the 
plaintiff  is  a  matter  of  defense,  if  his  case  raises  an  infer- 
ence  of  negligence  on  his  part,  he  must,  in  order  to  make 
out  a  prima  facie  case,  show  that  he  was  guilty  of  no  neg- 
ligence/ 

'  Tbompaon  on  Negligence,  1178. 


2145 


EVIDENCE  —  PLEADING   AND   DA.MAGES.  §  1213 


CHAPTER   LXIII. 


EVIDENCE  — PLEADING  AND  DAMAGES. 


§  1213.  What  is  negligeuce  —  Evidence  of  negligence. 

§  1214.  Law  and  fact  —  When  negligence  for  the  court. 

§  1215.  When  negligence  for  the  jury. 

§1210.  Pleading. 

§1217.  Measure   of   damagea  —  Loss  of   time  —  Incapacity  to  labor  —  Ex« 

l)ense8. 

§  1218.  Pain  and  safforing —  Physical  and  mental. 

§  12  li).  Exoinplary  and  punitory  damages. 

§  1220.  Mitigation  of  datuagcs. 

§1221.  Amount  of  damage  —  Verdict  sustained. 

§  1222.  Verdicts  set  aside  as  excessive. 

§  1213.    What  is  Negligence — Evidence  of  Negligenr& 

—  Negligence  is  in  law  a  relative  term,  implying  the  non- 
observance  of  or  omission  to  perform  a  duty  which  is  pre- 
scribed by  law,  or  which  arises  from  the  situation  of  the' 
parties  and  the  circumstances  surr6unding  the  transac* 
tion/  and  the  degree  of  care  and  vigilance  which  they 
usually  impose.''  Where  there  is  no  duty  to  be  cautious 
and  vigilant,  there  can  be  no  negligence  in  the  legal  sense 
of  the  term.^ 

In  cGi-taiu  cases,  from  the  fact  alone  of  the  injury,  a 
presumption  of  negligence  arises.  The  most  frequent  of 
these  cases  is  that  of  an  injury  to  a  passenger.  Here 
negligence  on  the  part  of  the  carrier  is  presumed;  for  he 
is  bound  by  law  and  by  his  contract  to  carry  the  passen- 
ger safely.  So  where  the  injury  arises  from  a  neglect  on 
the  part  of  a  person  to  perform  a  duty  enjoined  on  him 
by  statute.  Here  the  same  rule  applies.*  Another  in- 
stance of  this  presumption  of  negligence  from  the  hap- 
pening of  an  accident,  and  where  the  maxim  Res  ipsa 


'Kelly?..  R.  R.  Co.,  65  Mich.  186; 
8  Am.  St.  Rep.  876. 
'  lluys  V.  R.  R.  Co.,  70  Tex.  602; 

8  Am.  St.  Hup.  624. 
135 


•Morris  V.  Brown,  111  N.  Y. 
7  Am.  St.  Rep.  751. 
*  See  ^t,,  Title  Bailmeuta, 


318; 


§1213 


NEGLIGENCE. 


2146 


loquitur  applies,  occurs  where  the  happening  of  the  acci- 
dent is  out  of  the  ordinary  run  of  things,  and  is  not  what 
would  generally  result   in  the  absence  of  some  want  of 
care.    When  the  plaintiff  shows  damage  from  an  act  of  do- 
fendant,  which  act,  with  the  exercise  of  proper  care,  would 
not  ordinarily  produce   damage,  he  makes  out   a  prima 
facie  case  of  negligence,  and  throws  the  burden  of  proof 
on  defendant.*     This  princi'^^'3  is  well  stated  by  an  Eng- 
lish judge  in  a  case  in  whi  >ji  a  packing-case  fell  on  the 
plaintilF.^     He  said:    "There  is  abundant  evidence  that 
the  plaintiff  (defendant)  was  responsible  for  this  pucking- 
case.     It  was  his;  it  was  close  to  his  premises,  and  there 
was  evidence  that  his  servant  was  watching  it.     If,  there- 
fore, it  was  in  an  unsafe  position,  and  did  damage,  he  is 
responsible.     Was  there,  then,  evidence  of  this?     I  think 
there  was;  and  that  this  is  one  of  those  cases  in  which, 
as  has  been  said,  Res  ipsa  loquitur.     Packing-cases  care- 
fully placed  in  a  proper  position  do  not  naturally  tumble 
down  of  their  own  accord;  and  we  have  no  right  to  as- 
sume that  the  fall  of  this  packing-case  was  caused  by  the 
act  of  some  one  who  was  not   the  defendant's  servant, 
But  as  in  Byrne  v.  Boadle^  it  was  said  that  casks  of  flour 
do  not  roll  out  of  windows  naturally,  and  that  if  one  of 
them  falls  in  the  course  of  being  handed  out,  tliat  is 
prima  facie  negligence  im  those  who  are  handing  it  out; 
and  as  in  Scott  v.  Londom,  etc.  Dock  Company'^  it  was  said 
that  if  a  bag  of  sugar,  on  being  let  down  in  a  sling,  falls, 
that  is  prima  facie  evidence  of  its  having  been  improperly 
placed  in  the  sling, — so  here  the  facts  show  a  prima  Jack 
case.    The  substance  of  the  matter  is,  that  a  packing-case, 
for  which  the  deis^ndant  was  responsible,  fell  on  the  plain- 
tiff and  injured  him,  and  that  raises  a  question  for  the 
jury  as  to  the  defenc'ant's  negligence."    So  in  a  case  where 
a  brick   fell  from  the  wall  of  a  bridge  and  injured  the 


'  Moore  V.  Ptoker,  91   N.    C.    275; 
Bevis  V.  K  R   Co.,  26  Mo.  App.  19. 
-  Briggs  V.  Oliver,  4  Hurl.  &  C.  403. 


»  2  Hurl.  k.  C.  722. 
*  3  Hurl,  k  C.  596. 


2147 


EVIDENCE  —  PLEADING  AND  DAMAGES.  §  1213 


le  acci- 

ii  what 

vant  of 

;t  of  do- 

3,  would 

I  prima 

of  proof 

an  Eng- 

l  on  tUe 

nee  that 

packing- 

,nd  tliere 

If,  thcre- 

agc,  lie  is 
'  1  think 

in  which, 

;ases  care- 

lly  tumble 

ight  to  as- 

sed  by  the 

's  servant. 

ks  of  flour 
if  one  of 
.t,  that  is 

ling  it  out; 
it  was  said 
Isliug,  falls, 
[improperly 
orima  Jack 
[cking-case, 
|i  the  plain- 
ion  fi^'f  ^^^^' 
case  where 
.ijurcd  the 


plaintiff/  Cockburn,  C.  J.,  said:  "Tho  brick  being  loose 
allbrds,  prima  facie,  a  presumption  that  they  had  not  used 
reasonable  care  and  diligence.  It  is  true  that  it  is  possi- 
ble that,  from  changes  in  the  temperature,  a  brick  might 
get  into  tlie  condition  in  which  this  brick-work  appears 
to  have  been,  from  causes  operating  so  speedily  as  to  pre- 
vent the  possibility  of  any  diligence  and  care,  applied  to 
such  a  purpose,  intervening  in  duo  time  so  as  to  prevent 
an  accident.  But  inasmuch  as  our  experience  of  these 
things  is,  that  bricks  do  not  fall  out  when  brick-work  is 
kept  in  a  proper  state  of  repair,  I  think,  where  an  acci- 
dent of  this  sort  happens,  the  presumption  is,  thiit  it  is 
not  the  frost  of  a  single  night,  or  of  many  nights,  that 
would  cause  such  a  change  in  the  state  of  this  brick-work 
as  that  a  brick  would  fall  out  in  this  way;  and  it  must  be 
presumed  that  there  was  not  that  inspection  and  that  care 
on  the  part  of  the  defendants  which  it  was  their  duty  to 
apply.  On  the  other  hand,  I  admit  most  readily  that  a 
very  little  evidence  would  have  sufficed  to  rebut  the  pre- 
sumption which  arises  from  the  manifestly  defective  state 
of  this  brick-work."^ 

Thus  in  cases  of  the  following  character  it  has  been 
held  that  from  the  fact  of  the  accident  a  presumption 
of  negligence  arises,  viz.:  Where  a  bridge  gives  way 
when  a  train  is  passing  over  it;^  wiiere  a  steamboat 
or  a  locomotive  bursts  its  boiler;*  where  a  train  runs 
off  a  trpck;^  where  the  wheel  of  a  stage-coach  breaks;^ 
where  a  rail  of  a  railroad-track  breaks;'  where  the  shade 
of  a  lamp  in  a  car  falls;*  where  a  cinder  falls  from  the 


1  Kearney  v.  R.  R.  Co.,  L.  R.  5  Q. 
B.41I;  L.  R.  6  Q.  B.  759. 

-  Ami  see  Mullen  v.  St.  John,  57  N. 
Y.  fiuT;  Vincett  v.  Cook,  4  Hun,  .^18. 

^  Beilfortl  etc.  R.  R.  Co.  v.  Rain- 
bolt,  ill)  Ind.  551. 

'TIk'  Sydney,  27  Fed.  Rep.  119; 
Robinson  v.  R.  R.  Co.,  20  Bktchf. 
'&;  Rose  V.  Travia  Co.,  20  Blatchf. 
411.  Contra,  as  to  a  saw-mill;  Young 
r,  Biausford,  12  Lea,  232. 


*  Cent.  R.  R.  Co.  v.  Sanders,  7.S  Ga. 
513;  Murphy  v.  R.  R.  Co.,  36  Hun, 
199;  Texas  etc.  R.  R.  Co.  v.  Suggs,  62 
Te;..  323. 

•*  Lawrence  v.  Green,  70  Cal.  417; 
59  Am.  Rep.  428. 

"  Clev»l;ind  etc.  R.  R.  Co.  v.  Newell, 
104  Ind.  2(i4. 

"White  V.  R.  R.  Co.,  144  Ilass. 
404. 


§1213 


NEGLIGENCE. 


2148 


engine  of  an  elevated  railroad;^  where  a  cistern-wall  while 
being  built  falls  from  its  own  weight  or  from  the  pressure 
of  earth  placed  behind  it;''  where  one  is  injured  by  a  board 
or  plank  falling  from  another's  premises;^  where  in  re- 
moving a  cargo  of  ore  from  a  vessel  in  a  large  bucket  the 
bucket  tips  over;*  where  one  is  injured  at  night  by  cars 
being  loaded  with  timbers  projecting  seven  feet  beyond 
the  track ;^  where  a  steamboat  is  run  without  a  license,  in 
violation  of  the  federal  statute,  if  its  boiler  bursts,  the 
cause  of  the  explosion  will  be  presumed  to  be  the  failure 
to  have  the  boiler  inspected,  and  this  presumption  must  be 
rebutted.^  But  where  an  injury  is  equally  liable  to  have 
happened  in  either  of  two  ways,  by  accident  or  by  de- 
fendant's negligence,  it  must  be  shown  to  have  happened 
in  the  latter  way  in  order  that  defendant  may  be  held  lia- 
ble/ In  these  cases  the  evidence  must  show  a  want  of 
care  on  the  part  of  the  defendant.*  The  burden  of  estab- 
lishing the  relative  degrees  of  negligence  between  the 
plaintiff  and  defendant  is  upon  the  former." 

Illustrations.  —  Defendants,  who  occupied  for  business  pur- 
poses the  second  and  upper  floors  of  a  building,  were  hoisting 
a  box,  weighing  about  five  hundred  pounds,  to  their  rooms,  by 
means  of  iron  hooks  attached  to  its  sides.  Just  as  it  reached 
the  .second  floor  the  hooks  broke,  and  the  box  fell,  broke  through 
the  hatchway  on  the  first  floor,  and  struck  and  injured  the 
plaintiff!  who  was  lawfully  in  the  basement.  Held,  evidence  of 
negligence  on  the  part  of  the  defendants  warranting  a  verdict 
for  the  plaintiff:  Lyons  v.  Rosenthal,  11  Hun,  46.  A  telegraph- 
wire  swings  across  the  highway  so  low  as  to  interfere  with  a 
traveler's  Jiorses.  Held,  evidence  of  negligence  to  charge  the 
company  with  damages  sustained  by  the  traveler,  whose  horses 


iWiedmer  v.  R.  R.  Co.,  41  Huu, 
284. 

-  Mulcairns  v.  Janesville,  H7  Wis.  24. 

^  Clare  v.  National  City  Bank,  1 
Sweeny,  5;i9, 

*  Cuniinings  v.  Furnace  Co. ,  GO  Wis. 
603. 

"  Baston  v.  R.  R.  Co.,  GO  Ga.  339. 

"  Van  Norden  v.  Robinson,  45  Hun, 
567. 

'  The  Nellie  Flagg,  23  Fed.  Rep.  671. 


*2  Thompson  on  Negligence,  12.'?S; 
McCully  V.  Clarke,  40  Pa.  St.  .'V.)<t;  SO 
Am.  Dec.  584;  Ackerly  v.  Sulli'-an, 
34  La.  Ann.  1156;  Federal  St.  11.  H. 
Co.  V.  Gibson,  96  Pa.  St.  83;  State  v. 
R.  R.  Co.,  58  Md.  221;  Button  i-, 
Frink,  51  Conn.  342;  50  Am.  Rep.  24. 
And  see  Higgs  v.  Maynard,  1  Uar.  & 
R.  581. 

'  Chicago  etc.  R.  R.  Co.  v.  Harwood, 
90  111.  425. 


2148 


2149 


EVIDENCE — PLEADING   AND  DAMAGES. 


§1214 


all  while 
pressure 

I  a  l)oard 
ro  in  rc- 
icket  the 
;  by  cars 
;  beyond 
cense,  in 
ursts,  the 
le  failure 

II  must  be 
.e  to  have 
ar  by  de- 
happened 
3  held  lia- 
a  want  of 
I  of  estab- 
,ween  the 


isiness  pur- 
Ire  hoisting 
rooms,  by 
it  reached 
;o  through 
ijured  the 
ividencc  of 
a  verdict 
telegraph- 
ic re  with  a 
■barge  the 
ose  horses 

Lgencc,  1233; 
I.  St.  :«ih  80 
?,'.  SuUi'-'an, 
al  St.  11.  K. 
[83;  State  w 
Button  V. 
ixn.  R»'P.  24. 
rd,  1  Har.  & 

V.  HarwooJ, 


have  become  entangled  therein:  Thomas  v.  West.  Union  Tel.  Co., 
100  Mass.  156.     Defendant  was  under  an  obligation  to  keep  a 
bridge  in  repair,  but  had  suffered  it  to  get  out  of  repair.     The 
plaintiff  was  found  lying  under  the  bridge  at   midnight  on  a 
(lurk  night,  hurt.     Ho  made  no  other  statement  than  that  he 
had  fallen  from  the  bridge.    There  was  no  evidence  as  to  how 
he  camo  to  fall  from  it.     Ho  was  in  court  at  the  trial,  but 
neither  party  called  him  as  a  witness.     Held,  that  there  was 
evidence  of  negligence  for  the  jury:  Hays  v.  Gallagher,  72  Pa. 
St.  130,     Defendant,  for  the  purpose  of  a  concert,  hired  a  public 
hall  and  employed  a  person  to  decorate  it.     Among  the  dJecora- 
tions  was  a  bust  placed  on  the  outside  of  a  balcony.     The  plain- 
tiff sat  in  a  seat  on  the  floor  of  the  hall  immediately  under  the 
bust.     The  audience  were  requested,  by  the  programme,  to  rise 
at  a  certain  part  of  the  concert,  and  when  they  did  so,  the  bust 
fell  from  its  place  and  injured  the  plaintiff.     Held,  that  the 
mere  fact  that  the  bust  fell  was  not  sufficient  evidence  to  go  to 
the  jury  of  the  defendant's  negligence:   Kendall  v.  Boston,  118 
Mass.  234;  19  Am.  Rep.  446.     Deceased  was  found  in  a  dying 
condition  between  the  tracks  of  a  railroad,  having  sundry  cuts 
and  bruises  upon  her  person.     No  one  saw  the  accident,  but  a 
train  had  just  passed,  whose  engineer  and  fireman  both  testified 
that  they  were  looking  out  of  tho  cab  \vindows  at  the  time  the 
train  passed,  and  saw  nobody  on  or  near  the  track.     There  was 
no  obligation  upon   the  company  to  ring  the  bell  or  blow  the 
whistle  at  that  point,  though  it  was  a  place  where  people  were 
in  tho  habit  of  crossing.     Held,  that  there  was  no  evidence  of 
negligence  on  which  the  case  could  be  submitted  to  the  jury: 
Kiiiik  Cent.  R.  R.  Co.  v.  State,  54  Md.  113.     A  passenger  in  a 
raih'oad  car  sat  with  his  elbow  on  the  window-sill,  but  so  far 
within  the  window  that  the  window  could   have  been  closed 
without  touching  it.     His  arm  was  struck  by  a  swinging  door 
on  a  passing  freight- train.     In  his  action  against  the  railroad 
company,  no  explanation  of  the  accident  was  given.    Held,  that 
he  was  entitled  to  recover,  a  want  of  proper  care  on  the  part  of 
the  company  necessarily  being  inferred:  Breen  v.  R.  R.  Co.,  109 
N.  Y.  297.     Plaintiff,  in   going   to  defendant's   ferry-boat  was 
oWiged  to  pass  through  a  swinging-door.     The  door  swung  back 
after  the  person  in  advance  of  plaintiff  had  passed  through,  and 
plaintiff,  in  trying  to  stop  it,  thrust  his  hand  through  the  glass. 
Hdd,  in  his  action  against  the  company,  that  a  nonsuit  should 
be  ordered,  there  being  no  showing  that  the  door  was  improp- 
erly constructed  or  used:  Hayman  v.  R.  R.  Co.,  118  Pa.  St.  508. 

1 1214.    Law  and  Pact — When   Negligence    for  the 
Court. — Wheu  the  circumstances  of  a  case  are  such  that 


§1214 


JJEOLIOENCB. 


21  GO 


the  atandard  of  duty  is  fixed,  when  the  measure  of  duty 
is  defined  by  law,  and  is  the  same  under  all  ci^rcumstaiicos, 
its  omission  is  negligence,  and  may  be  so  declared  by  llie 
court. ^  "It  is  frequently  stated  that  when  the  facts  aro 
undisputed  or  conclusively  proved,  the  question  of  ne^'li- 
genco  is  to  be  decided  by  the  court.''  A  better  opinion, 
however,  would  seem  to  bo,  that  in  order  to  justify  tho 
withdrawal  of  the  case  from  the  jury  the  facts  of  the  cuso 
should  not  only  be  indisputed,  but  the  conclusion  to  bo 
drawn  from  those  facts  indisputable.'  Whether  the  facts 
be  disputed  or  undisputed,  if  different  minds  may  hon- 
estly draw  different  conclusions  from  them,  the  case 
should  properly  be  left  to  the  jury." ''     If  the  case  is  such 

*  2  Thompson  on  Neglif^ence,  123C;  troit  etc.  R.  R.  Co.  v.  Van  Steinburt,', 

citing  West  Chester  etc.  R,  R.  Co.  v.  17  Mich.  99;  Beers  v.  R.  R.  Co.,  il» 

McElwee,  G7  Pa.  St.  311;  McCully  v.  Conn.  5GG;  Vinton  v.  Schwab,  IW  Vt. 

Clarke,  40  Pa.  St.  399;  80  Am.  Due.  612;  Wyatt  v.  R.  R.  Co.,  55  Mn.  is:,; 

584;  Bait.  etc.  R.  R.  Co.  v.  Breinig,  Norton  v.  Ittner,  5G  Mo.  351;  .1011111113 

25  Md.  378;  90  Am.  Dec.  49;  Reading  v.  R.  R.  Co.,  2  Disu.  49;  Stoddiir,!  r. 

etc.  R.  R.  Co.  V.  Ritchie,  102  Pa.  St.  R.  R.  Co.,  G5  Mo.  514;  Penii.  ('lui.d 

425.  Co.  V.  Bentley,  GG  Pa.  St.  30;  McOiath 

^Oavett  V.  R.  R.  Co.,  16  Gray,  501;  v.  R.  R.  Co.,   32  Barb.  144;  State  v. 

77  Am.  Dec.  423;  Gagg  v.  Vetter,  41  Railroad,  52  N.  H.  529;  Gaynor  r.  R, 

Ind.  228,  254;  13  Am.  Rep.  322;  Louis-  R.  Co.,    100  Mass.  208;  97  A;n.  Dee. 

ville  Canal  Co.  v.   Murphy,   9  Bush,  96;  Cleveland  etc.  R.  R.  Co.  v.  t'niw 

522;  Costello  v.   Landwehr,  28  Wis.  ford,  24  Ohio  St.  631;  15  Am.  Jiup. 

522,  529;  Grigsby  v.  Chappel,  5  Rich.  633;  Pennsylvania  etc.  R.   R.   Co.  r. 


446;  Pittsburgh  etc.  R.  R.  Co.  v. 
Evans,  53  Pa.  St.  250;  Flemming  v. 
R.  R.  Co.,  49  Cal.  253;  Van  Lien  v.  Sco- 
viilc  Mfg  Co.,4Dalyj554;  Footv.Wis- 
wall,  14  Johns.  304;  Thrings  v.  R.  R. 
Co. ,  7  Rob.  (N.  Y. )  61 6 ;  Biles  17.  Holmes, 


Ogier,  35  Pa.  St.  60;  78  Am.  Dc 
Creed  v.  Hartmann,  29  N.  Y.  ')'.)];  8(i 
Am.  Dec.  341;  Johnson  v.  R.  R.  Co, 
11  Minn.  296;  88  Am.  Dec.  8:5;  Hill 
r.  New  Haven,  37  Vt.  501;  8S  Am, 
Dec.  613;  Bait.  etc.  R.  R.  Co.  r.  Mil- 


11  Ired.  16;  Dascomb  r.  R.  R.  Co.,  27  ler,  29  Md.  252;  96  Am.   1)00.  r.iS; 

Barb.   221;  Dublin  etc.  R.  R.  Co.  v.  Quirk  v.  Holt,  99  Mass.  164;  '.Ki  Am. 

Slattery,  3  App.  Cas.  1155,  1201;  War-  Dec.   725;  Gaynor  v.   R.   R.  Co.,  100 

ren  v.  R.  R.  Co.,  8  Allen,  227;  85  Am.  Mass.  208;  97  Am.  Dec.  96;  MuUii^rm 

Dec.  700;  Snow  v.  R.  R.  Co.,  8  Allen,  v.  Curtis,  100  Mass.  512;  97  Am.  l)oc. 

441;  85  Am.  Dec.  720;  Gonzales  v.  R.  121;  Morrissey  v.  Wiggins  Fciry  Co., 

R.  Co.,  38  N.  Y.  440;  98  Am.   Dec.  43  Mo.  380;  97  Am.  Dec.  402;  IJotniit 

58;  Johnson  v.  Bruner,  61  Pa,  St.  58;  etc.  R.  R.  Co.  v.  Curtis,  23  Wi.i.  kVJ; 

100  Am.   Dec.  613;  O'Neill  v.  R.  R.  99  Am.  Dec.  141;  North  Cent.  etc.  R. 

Co.,  1  McCrary,  505;  Abbett  v.  R.  R.  R.  Co.  v.  State.  31  Md,  357;  100  Am. 

Co.,  30  Minn.  482;  Wallace  v.  R.  R.  Dec.   69;   Ernst  v.  R.  R.  Co..  :'.)  X. 

Co.,  98  N.  C.  494;  2  Am.  St.  Rep.  347.  Y.  61;  100  Am.  Dec.  405;  Pennsylvania 

^  MoLain  v.  Van  Zandt,  7  Jones  &  etc.  R.  R.  Co.  v.  Righter,  42  N.  J.  L. 

S.  347;  Ohio  &  M.  R.  R.  Co.  v.  Col-  180;  Sheff  v.  Huntington,   10  W.  Va, 

lam,  73  lud.  261;  38  Am.  Rep.  134.  307;  Vickers  v.  R.  R.  Co.,  64  Ca.  (j:i5; 

*  City    R.    R.    Co.    v.   Lee,    50   N.  Kansas  etc.  R.  R.  Co.  v.  Riclianlsou, 

J.  L.  435;  7  Am.  St.  Rep.  798;  Rail-  25  Kan.  391;  Kansas  etc.  11.  K.  Co.  v. 

jroad  Co.  v.  Stout,  17  Wall.  657;  De-  Owen,  25  Kan.  419;  Teipel  v.  Hilsen- 


21  a 


EVIDENCE — PLE.U)INO   AND   DAMAGES.  §  1214 


tliat  reasonable  men,  unaffected   by  bias  or   prejudice, 
would  be  agreed  concerning  the  presence  or  absence  of 

mm;  41  Mich.  4(51 ;  Hart  v.  R.  R.  Co., 
80  N,  Y.  (i-2'2;  Kolly 


SON,  Y.  U-J'J;  Kolly  v.  R.  R.  Co,,  70 
.Mo,  (ill;  Jolmsoii  V.  R.  R.  Co.,  4!) 
U'ii,  ')•-((;  Odagj  City  v.  Brown,  27 
Kill).  71;  Pittshur^li  etc.  R.  R.  Co.  v. 
\Vi  l^llt,  8;)  Irvl.  ISi',  '2M;  Pomi.  Co.  v. 
Couiaii,  101  111.  9;{;  Chicago  etc.  R.  R, 
,..  Kl;ail).r,  0  111.  App.  U13;  Marcotli 
c,  11.  11.  Co.,  47  Mich.  1;  Townley  v. 
R,  li.  Co,,  f).'}  VVi.s.  G2G;  Bicrbach  v. 
R.  I't.  Co,,  14  Fed.  Rep.  82G;  15  Foil. 
ll:[,.  VM;  Hill  (',  R.  R.  Co.,  IG  Fuel. 
Roj).  714;  Tiittlc  v.  Farmingtoii,  58 
N.  )l.  l.^;  Grill) a  r.  Auburn,  58  N.  H. 
1-JI;  SloeiH^r  v.  R.  R.  Co.,  58  N.  H. 
521);  CooJrich  v.  R.  R.  Co.,  29  Hun, 
-)0:  Bell  v.  R.  R.  Co.,  21)  Hun,  5G0; 
Merritt  v.  Fitzgihbons,  29  Hun,  G.'M; 
Payne  c.  Rocrfc,  100  Pa.  St.  301;  Frick 
«.  K.  R,  Co.,  75  Mo.  575;  Terre  Haute 
etc.  K.  Pk.  Co.  1).  Jones,  11  111.  App. 
;K'2;  lluiusay  v.  R.  R.  Co.,  81  Ind.  394; 
Rulaiid  r.  South  Newmarket,  59  N. 
H.  '2i»l;  Fassctt  v.  Roxbury,  55  Vt. 
oo'i;  Brooks  v.  R.  R.  Co.,  135  Mass. 
21;  Wliooler  v.  Wason  Mfg.  Co.,  135 
Mass.  2'.t4;  O'Connor  v.  K.  11.  Co.,  135 
Ma.is.  352;  Copley  «.  R.  R.  Co.,  13G 
Mass).  ();  White  v.  R.  R.  Co.,  13G 
Mass.  '.V2\;  Palmer  v.  Bearing,  93  N. 
Y.  7;  (Uiy  r.  R.  R.  Co.,  30  Hun,  399; 
William  V.  R.  R.  Co.,  31  Hun,  392; 
Louguockfr  V.  R.  R.  Co.,  105  Pa.  St. 
328;  Xaiiticokc  y.  VVancc,  lOG  Pa.  St. 
373;  Blown  v.  R.  II.  Co.,  15  Phila. 
321;  K:ust  Tennessee  R.  R.  Co.  v.  Bay- 
less,  74  Ala.  150;  Farris  v.  R.  R.  Co., 
80  -Mo.  :(i25;  Keiuiey  v.  R.  R.  Co.,  80 
Mo.  57,3;  Scoville  v.  R.  R.  Co.,  81  Mo. 
434;  Atkinson  v.  Goodrich  Trans.  Co., 
GO  Wis.  141;  50  Am.  Rep.  352;  White 
V.  U.  U.  Vo.,  Gl  Wis.  53G;  50  Am. 
Kcii.  154;  Dull  v.  R.  R.  Co.,  02  Wis. 
(152;  iMurk  v.  R.  R.  Co.,  32  Minn.  208; 
Hutchinson  u.  11.  R.  Co.,  32  iSIiun.  398; 
Corey  u.  II.  R.  Co.,  32  Minn.  457; 
Stockcr  ('.  Minneapolis,  32  Minn.  478; 
Hvues  ('.  R.  R.  Co  ,  G5  Cal.  31G;  Phil- 
brick  V.  Niloa,  25  Fed.  Rep.  2G5;  Mat- 
tey  ('.  Machine  Co.,  140  Mass.  337; 
Soiuer  V.  R  R.  Co.,  141  Mass.  10;  Mc- 
Kiinblu  y.  R.  R.  Co.,  141  Mass.  4G3; 
l>ixoii  ,1.  R,  R.  Co.,  100  N.  Y.  170; 
Gieany  „.  R.  R.  Co.,  101  N.  Y.  419; 
Moeljus  V.  Hermann,  38  Hun,  370; 
Palmer  o.  R.  R.  Co.,  56  Mich.  1;  John- 


son V.  R.  R.  Co.,  18  Neb,  090;  Lin- 
coln r.  Gulian,  18  Neb,  114;  Dun- 
lavy  (>.  R.  R.  Co.,  GG  Iowa,  4;!5;  Henry 
V,  R,  R.  Co.,  GG  Iowa,  5_';  Crowley  i\ 
R.  R.  Co.,  G5  Iowa,  G58;  Neur  r.  Canal 
Co.,  32  Hun,  557;  Flag^'  r.  R.  R.  Co., 
49  N.  Y.  Sup.  Ct.  251 ;  Vo.s[)er  v.  New 
Y'ork,  49  N.  Y.  Sup.  Ct.  29(>;  Dawson 
V.  Sloan,  49  N.  Y.  Sup.  Ct.  304;  Mun- 
roe  r.  R.  R.  Co.,  50  N.  Y.  Sup.  Ct, 
114;Rooneyi>.  Steamship  Co.,  10  Daly, 
241;  Boon  v.  R.  R.  Co.,  101  Pa.  St. 
334;  Cumberland  Valley  11.  11.  Co.  v. 
Maugana,  Gl  Md.  53;  48  Am.  Rep.  88; 
Moore  v.  R.  R.  Co.,  2  Maekey,  437; 
Texas  etc.  R.  R.  Co.  v.  Levi,  59  Tex. 
674;  Houston  etc.  R.  R.  Co.  y.  Simp- 
son, GO  Tex.  103;  Texas  etc.  R.  R.  Co. 
V.  Hcrbcck,  GO  Tex.  602;  Mis.souri  etc, 
R.  R.  Co.  V.  Cornell,  30  Kan.  35; 
White  V.  R.  R.  Co.,  31  Kan.  280; 
Albion  V.  Hotrick,  90  Ind.  545;  46 
Am.  Rop.  230;  Chicago  ote.  R.  R.  Co. 
V.  Warner,  108  111.  53G;  Sloan  v.  R.  R. 
Co.,  62  Iowa,  728;  Bohan  v.  R.  R.  Co., 
58  Wis.  30;  Gibbons  v.  R.  R,  Co.,  58 
Wis.  335;  Denby  v.  Wider,  59  Wis. 
240;  Martin  v.  R.  R.  Co.,  31  Minn. 
417;  Loucka  v.  R.  R.  Co.,  31  Minn. 
52G;  Nebrhas  v.  R.  R.  Co.,  62  Cal. 
320;  Walsh  v.  R.  R.  Co.,  lOOr.  250; 
Lesan  v.  R.  R.  Co.,  77  Me.  85;  Morse 
V.  Belfast,  77  Me.  44;  Lewis  v.  R.  R. 
Co,,  GO  N.  H.  187;  Tyler  r,  11,  R.  Co., 
137  Mass.  278;  Remer  r.  R.  R.  Co., 
.34  Hun,  153;  Northrup  r.  R.  R.  Co., 
37  Hun,  295;  Pennsylvania  etc.  11.  R. 
Co.  i\  Reed,  17  111.  App.  413;  Chicago 
etc.  R.  R.  Co.  V.  Carey,  115  111.  115; 
Evans  etc.  Brick  Co.  r.  R.  11.  Co.,  21 
Mo.  App.  648;  Stafford  v.  R.  R.  Co., 
22  Mo.  App.  333;  Dunn  r.  R.  R.  Co., 
21  Mo.  App.  188;  White  r.  11.  R.  Co., 
20  Mo.  App.  5G4;  Cook  v.  R.  R.  Co., 
19  Mo.  App.  329;  Gul)aseo  v.  New 
York,  12  Daly,  183;  Newell  v.  Ryan, 
40  Hun,  286;  Webster  r.  R.  H.  Co.,  40 
Hun,  161;  Williams  v.  R.  R.  Co.,  .39 
Hun,  430;  Drain  v.  R.  R.  Co.,  86 
Mo.  574;  Int.  etc.  R.  R.  Co.  v.  Ov- 
mond,  64  Tex.  485;  Peansylvania  etc. 
R.  R.  Co.  V.  Garvcy,  lUS  Pa.  St.  3G9; 
Am.  S.  S.  Co.  V.  Landreth,  103  Pa.  St. 
264;  Young  v.  R.  R.  Co.,  5G  Mich. 
430;  Lowell  v.  Watertown,  58  Mich. 
568;  Ferguson  v,  R.  R.  Co.,  63  Wis. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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WEBSTER,  N.Y.  14580 

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§1214 


NEOLIOENCB. 


2152 


duo  care,  the  judgo  would  be  quite  justified  in  saying  that 
the  hiw  deduced  tho  conclusion  accordingly.  If  the  facts 
arc  not  ambiguous,  and  there  is  no  room  for  two  honest 
and  apparently  reasonable  conclusions,  then  the  judge 
should  not  be  compelled  to  submit  the  question  to  tho 
jury  as  one  in  dispute.  On  the  contrary,  he  should  say  to 
them,  "In  the  judgment  of  tho  law  this  conduct  was 
negligent,"  or,  as  tho  case  might  be,  "There  is  nothing 
in  the  evidence  hero  which  tends  to  show  a  want  of  due 
care."  In  either  case  he  draws  tho  conclusion  of  negligence 
oi  the  want  of  it  as  one  of  law."' 


14';  Orar.-cctc.  R.  R.  Co.  v.  Ward, 
&.  y.  ■'.  I...  500;  Dahl  v.  R.  R.  Co.,  G5 
Wij.  .  : ;  Joavitt  v.  R.  R.  Co.,  C4 
Wis.  'i:'  iJiifour  V.  R.  R.  Co.,  67  Cal. 
819;  r.nvj.  v.  R.  R.  Co.,  143  Mass. 
107;  Srith  V.  Wildes,  143  Mass.  150; 
Moyni-  ai)  ".  Wliidden,  143  Mass.  257; 
Delory  r.  'iriny,  144  Mass.  445;  Mul- 
ler  V.  i'.^'.  of  Columbia,  5  Mackey, 
28G;  Ml  I  tilde  v.  R.  R.  Co.,  5  Mackey, 
144;  B.iU;ituiro  etc.  R.  R.  Co.  v.  Rose, 
65  Md.  4s.'p;  Leliigh  etc.  R.  R.  Co.  v. 
Brandtiiu  ;.  r,  113  Pa.  St.  610;  Balti- 
more eti:.  II.  R.  Co.  V.  Owings,  65  Md. 
485;  Nosli.!  V.  R.  R.  Co.,  113  Pa,  St. 
300;  LcL  /■.  Woolsey,  109  Pa.  St.  124; 
Berry  v.  U.  R.  Co.,  48  N.  J.  L.  141; 
Francis  -•.  iSteam  Co.,  13  Daly,  510; 
Craig  *•.  R.  R.  Co.,  13  Daly,  214; 
Liudcinaii  r.  R.  R.  Co.,  42  Hun,  306; 
Crabell  r.  ( '. ,ii\ Co.,  68  Iowa,  751 ;  Nich- 
ols ('.  R.  l;.  Co.,  63  Iowa,  732;  Georgia 
etc.  R.  J^  Co.  V.  Williams,  74  Oa. 
723;  Ferguson  v.  R.  R.  Co.,  75  Ga. 
637;  Cliioii^o  etc.  R.  R.  Co.  v.  O'Con- 
nor, ll'.>  111.  586;  Chicago  etc.  R.  R. 
Co.  V.  Rr  loonier,  119  111.  51;  Alabama 
etc.  R.  (V).  V.  Arnokl,  80  Ala.  600; 
Eureka  ('...  v.  Bass,  81  Ala.  200;  60 
Am.  Rl']i.  152;  Matthews  w.  R.  R.  Co., 
26  Mo.  App.  75;  Keim  v.  R.  R.  Co., 
90  Mo.  .M4;  Jameson  v.  R.  R.  Co.,  63 
Miss,  li-.',;  Leslie  v.  R.  R.  Co.,  88  Mo. 
50;  Tayl.i  /•.  R.  R.  Co.,  26  Mo.  App. 
3:56;  Pcitv  r.  il.  R.  Co.,  88  Mo.  306; 
Burns  V.  It.  R.  Co.,  69  Iowa,  450;  58 
Am.  Rop.  227;  Day  v.  R.  R.  Co.,  70 
Iowa,  VXi;  Annas  v.  R.  R.  Co.,  67 
Wis.  46;  58  Am  Rep.  848;  Sherman 
V.  R.  R.  (."...,  .34  Minn.  259;  Barbo  v. 
Baasett,  35  Miaa.  485;  Robel  v.  B.  B. 


Co.,  35  Minn.  84;  Hoye  v.  R.  R,  Co., 
67  Wis.  1;  Gibbons  v.  R.  R.  Co.,  GG 
Wis.  IGI;  Sheldon  v.  II.  R.  Co.,  59 
Mich.  172;  Paryno  v.  R.  R.  Co.,  70 
Iowa,  584;  Peck  v.  R.  R.  Co.,  57  .Mich. 
3;  Gupgonhcim  v.  R.  R.  Co.,  57  Mich. 
488;  Klauowski  v.  R.  R.  Co.,  57  Mich. 
625;  Sevoke  v.  R.  R.  Co.,  57  .Mich. 
589. 

'  Cooley  on  Torts,  670;  Rudolphy  v. 
Fuchs,  44  How,  Pr.  155,  160;  lloufe 
V.  Fulton,  29  Wis.  296;  Fernandez  v. 
R.  R.  Co.,  52  Cal.  45.  In  U.  R. 
Co.  V.  Stout,  17  Wall.  657,  the  su- 
prcmo  court  of  the  United  States  say: 
"It  is  true,  in  many  cases,  that  wliere 
the  facts  are  undisputed,  the  etl'uct  of 
them  is  for  tho  judgment  of  the  court, 
and  not  for  the  decision  of  the  jury. 
This  is  true  in  that  class  of  e^ses 
where  tho  existence  of  such  facts  cume 
in  question  rather  than  where  deduc- 
tions or  inferences  are  to  be  inatlo 
from  tho  facts.  If  a  deed  bo  given  in 
evidence,  a  contract  proven,  or  its 
breach  testified  tc,  the  cxistcii''o  of 
such  deed,  contract,  or  breach,  there 
being  nothing  in  derogation  of  the 
evidence,  is  no  doubt  to  bo  ruhil  as  a 
question  of  law.  In  some  cases,  too, 
tlio  necessary  inference  from  tlu;  proof 
is  BO  certain  that  it  may  be  rule(l  as  a 
question  of  law.  If  a  sane  man  vol- 
untarily throws  himself  in  contact 
with  a  passing  engine,  tlicrc  heina 
nothing  to  counteract  tho  elTcf  t  of 
this  action,  it  may  be  ruled  as  a  matter 
of  law  that  tjie  injury  to  him  resulted 
from  his  own  fault,  and  that  no  action 
can  be  sustained  by  him  or  his  repre- 
sentatives.   So  if  a  coach-driver  iateu' 


2153 


EVIDENCE  — PLEADING   AND   DAMA. 


§  1214 


Tlio  cases  iu  which  the  question  of  negligence  is  ono 
for  the  court  to  decide  are  comparatively  rare.  In  the 
largo  majority  of  cases  the  question  of  negligence  under 
the  evidence  is  one  of  fact  for  the  jury.*  The  following 
have  been  held  to  be  properly  decided  by  the  court: 
■\Vliother  a  particular  person  is  a  "fellov/- servant"  of 
another;^  whether  a  rule  of  a  railroad  is  reasonable;' 
whclher  authority  to  receive  notice  is  witliin  the  scope  of 


tiniially  drives  within  a  few  inches  of 
aiirccijiicc!,  and  au  accident  happens, 
ucgligL'iico  may  he  ruled  as  a  question 
of  liw.     On  tho  other  hand,  if  ho  had 
jilaccd  ii  suitable  distanco  between  his 
coiuh  ami  tho  precipice,   but   by  tho 
liniiking  of  a  rein  or  an  axle,  which 
could  lint  liavo  been  anticipated,  an 
injury  ocuurrcd,  it  might  bo  ruled,  as 
a  (jufstiipi)  <if  law  that  there  was  no 
iiegli^incc  and  no  liability.     But  these 
arc  cxtroiiio   cases.      Tho   range   be- 
twi'on    tlicm    is    almost    iufinite    in 
variuty  iind  extent.     It  is  in  relation 
to  tlic;o  iiiteruiediato  cases  that  tho 
ojii").sito    rulo     prevails.       Upon    tho 
facts  pnvon   in   sucli  civses,   it  is  a 
matter  of  judgment  and  discretion,  of 
souiiil  inference,  what  is  tho  deduction 
to  1)0    (hawu    from    the  undisputed 
facts.    Certain  facts  we  may  suppose 
to  1)0  dearly  established  from  which 
one  sensible,    impartial    man    would 
infer  that  proper  caro  had  not  been 
useil,  and    tiiat    negligence    existed; 
anotJicr    man,   criually    sensible    and 
fiiiially  impartial,    would  infer  that 
proper  tare  hail  been  used,  and  that 
there  VMS  no  negligence.     It  is   this 
chm  of  cases,  and  thoso  akin  to  it, 
that  tlio  law  commits  to  tho  decision 
of  a  jury.    Twelve  men  of  tho  average 
of  tlio  community,  comprising  men  of 
educatiDn  and  men  of  little  education. 
incu  (if  learning  and  men  whoso  learn- 
ii»K  consists  only  in  what  they  have 
themselves  seen  and  heard,  the  mer- 
chant, the  mechanic,  tho  farmer,  the 
lahorcr,— thoso  sit  together,  consult, 
apply  their  separate  experience  of  the 
aifiirs  of  life  to  the  facts  proven,  and 
draw  a  unanimous  conclusion.     This 
average  judgment  thus  given  it  is  the 
great  etlort  of  the  law  to  obtain.     It 
13  assumed    that  twelve   men  know 
more  of  the  common  affairs  of  life  than 


does  one  man;  that  they  can  draw 
wiser  and  safer  conclusions  from  ad- 
mitted facts  thus  occurring  than  can 
a  single  judge.  In  no  class  of  cases 
can  this  practical  experience  be  more 
wisely  applied  than  in  that  wo  are 
considering.  Wo  find,  accordingly, 
although  not  uniform  or  harmonious, 
that  the  authorities  justify  us  in  hold- 
ing in  the  case  before  us,  that  although 
tho  facts  are  undisputed,  it  is  for  the 
jury,  and  not  for  tho  judge,  to  deter- 
mino  whether  proper  caro  was  given, 
or  whether  they  establish  negligence." 

'  Detroit  R.  ll.  Co.  v.  Van  Steinburg, 
17  Mich.  <J7;  Philadelphia  etc.  K.  R. 
Co.  V.  Spearen,  47  Pa.  8t.  300;  8G  Am. 
Dec.  545;  11.  11.  Co.  v.  8tout,  17  Wall. 
C57;  Hawks  v.  Northampton,  121 
Mass.  10;  Schmidt  v.  R.  R.  Co.,  83 
111.  405;  Chicago  etc.  R.  R.  Co.  v. 
Leo,  60  111.  501;  Cramer  v.  City  of 
Burlington,  42  Iowa,  315;  Artz  v.  R. 
R.  Co.,  44  Iowa,  284;  Belair  v.  R.  R. 
Co.,  43  Iowa,  (5(53;  Lake  Shore  etc. 
R.  R.  Co.  V.  Miller,  25  Mich.  274; 
Kansas  Pacific  R.  R.  Co.  i\  Brady,  17 
Kan.  380;  Atchison  etc.  R.  R.  Co.  v. 
Bales,  IG  Kan.  252;  Perry  v.  11.  R. 
Co.,  50  Cal.  578;  McNamarav.  R.  R. 
Co.,  50  Cal.  581;  Conroy  v,  Vulcan 
Iron  Work.j,  (52  Mo.  35;  Keegan  v. 
Kavanaugh,  G2  Mo.  231;  Ceor^ia  etc. 
Co.  V.  Neeley,  56  Oa.  .'541;  Allen  v. 
Hancock,  16  Vt.  230;  Rico  v.  Mont- 
pelier,  19  Vt.  470;  Hill  v.  New  Haven, 
37  vt.  501;  88  Am.  Dec.  613;  McCully 
V.  Clarke,  40  Pa.  St.  3ys);  80  Am.  Dec. 
584;  Smith  v.  O'Connor,  48  Pa.  St. 
218;  86  Am.  Dec.  582. 

■■"  Marshall  v.  Schricker,  63  Mo.  308; 
McGowan  v.  R.  R.  Co.,  61  Mo.  326; 
VVhalen  v.  Centenary  Church,  62  Mo. 
326. 

'  Chicago  etc.  R.  R.  Co.  v.  McLallen, 
84  111.  10§.  ' 


§1214 


NEOLIGENCE. 


2154 


the  duties  of  a  certain  agency ;'  whether  the  omission  to 
give  the  statutory  signals  is  negligence;'  whether  (in  cer- 
tain cases)  a  defect  in  a  highway  is  unsafe;'  whether  a 
person  in  traveling  on  the  highway  is  using  due  care;* 
whether  it  is  negligence  in  walking  upon  railroad  tracks 
without  adequate  precautions  against  the  approacli  of 
trains;®  or  crawling  under  or  through  cars  which  have 
stopped  temporarily  upon  the  track;*  or  crossing  raihoad 
tracks  upon  the  highway  withont  looking  up  or  down  the 
track  for  approaching  trains;^  or  riding  upon  the  platform 
of  a  railroad-car,*  or  with  the  arm  or  a  portion  of  tlio 
body  protruding  from  a  car  window;*  or  leaping  from  a 
train  of  cars  in  motion;^"  or  landing  at  a  place  obviously 
not  designed  for  the  reception  of  passengers."  The  ques- 
tion of  proximate  or  remote  cause  is  a  question  for  the 
jury,  if  the  facts  are  disputed,  but  where  they  are  uudis- 
puted,  it  is  for  the  court.*^ 


»  Mobile  etc.  R.  R.  Co.  v.  Thomas, 
42  Ala.  672. 

^  Chicago  etc.  R.  Co.  v.  Bogga,  101 
In<l.  ir2-2;  51  Am.  Rep.  7G1. 

^  IVitluaux  V.  Mineral  Poiut,  43  Wis. 
513;  28  Am.  Rep.  558;  Schmidt  r.  R. 
R.  Co.,  83  111.  405.  Rut  this  is  gen- 
erally a  question  for  the  jury:  Sue  pott. 

*  Ca-amlich  v.  R.  R.  Co.,  U  Phila.  78. 
But  tliid  id  also  generally  for  the  Jury: 
Seu  post. 

^  2  Thompson  on  Negligence,  1238. 

"  2  Thompson  on  Negligence,  1238; 
Gahuglian  v.  R.  R.  Co.,  1  Allen,  187; 
79  Am.  Dec.  724. 

'  Cont.  R.  R.  Co.  V.  Feller,  84  Pa. 
St.  2l:G. 

8  llickey  V.  R.  R.  Co.,  14  Allen,  429; 
Quinn  r.  R.  R.  Co.,  51  HI.  4i)5. 

9  To  hi  V.  R.  R.  Co.,  3  Allen,  18;  80 
Am.  Djc.  41);  7  Allen,  207;  83  Am. 
Dec.  1179;  Pittahurgli  etc.  R.  R.  Co.  v. 
Andrews,  39  Md.  329;  17  Am.  Rep. 
50!);  Indianapolis  etc.  R.  R.  Co.  v. 
Rutlierford,  29  Ind.  82;  92  Am.  Dec. 
3.'>(j;  Morel  ?'.  Mississippi  Ins.  Co.,  4 
Buuli,  535;  Pittsbur>?h  etc.  R.  R.  Co. 
V  McClurg,  56  Pa.  St.  294;  Louisville 
etc.  R.  R.  Co.  r.  Sickings,  5  Bush,  I; 
96  Am.  Dec.  320;  Holbrook  v.  R.  B« 


Co.,  12  N.  Y.  236;  64  Am.  Dec.  m. 
Contra,  Spencer  r.  R.  R.  Co.,  17  Wis. 
487;  84  Am.  Dec.  758;  Chicago  etc. 
R.  R.  Co.  V.  Pondrom,  51  111.  ;J3.?;  2 
Am.  Rep.  306;  Winters  v.  R.  II.  Co., 
39  Mo.  468;  Barton  v.  R.  R.  Co.,  52 
Mo.  253;  14  Am.  Rep.  418. 

>"  R.  R.  Co.  V.  Asnell,  23  Pa.  St.  147; 
Jeffcrsonville  etc.  R.  R.  Co.  v.  Ikn- 
drick's  Adm'r,  26  Ind.  228;  M(irii»on 
V.  R.  R.  Co.,  56  N.  Y.  302;  15ll^•o^^8 
V.  R.  R.  Co.,  63  N.  Y.  550;  bainont 
V.  R.  R.  Co.,  9  La.  Ann.  441;  (11  Am. 
Dec.  214;  Dougherty  v.  R.  P..  <'o.,  86 
111.  467;  Gavett  v.  R.  R.  Co..  10  Cray, 
501;  77  Am.  Dec.  422;  Lucas  r.  11.  R. 
Co.,  6  Gray,  64;  66  Am.  Doc.  4!)6; 
Ginnou  v.  R.  R.  Co.,  3  Rob.  (N.  Y.) 
25;  Illinois  etc.  R.  R.  Co.  ■•.  Slalton,  ■)4 
111.  133;  5  Am.  Rep.  109;  Ohio  ttc.  U. 
R.  Co.  V.  Schiebe,  44  111.  400;  Oliioutc. 
R.  R.  Co.  V.  Stratton,  78  III.  8S. 

"  Pennsylvania R.  R.  Co.  r.  Zvl>e,  33 
Pa.  St.  318;  37  Pa.  St.  420;  lluuToft 
V.  R.  R.  Co.,  97  Mass.  275;  (Joi'zalos 
V.  R.  R.  Co.,  38  N.  Y.  440. 

'*  West  Mahanoy  Township  v.  Wat- 
son, 116  Pa.  St.  344;  2  Am.  St.  Rep. 
604;  South  etc.  R.  R.  Co.  v.  Trich,  117 
Pa.  St.  390;  2  Am.  St.  Rop.  672. 


2155 


EVIDENCE  —  PLEADINa  AND  DAMAGES.  §  1215 


Ti.i.usTKATTONs.  —  A  man  with  a  wagon  drove  from  one  of  the 
tracks  on  which  a  dummy-engine  was  run  to  another  track  on 
whitli  he  knew  that  an  engine  would  soon  be  due.  The  team 
got  caught  in  the  track,  and  an  accident  resulted.  ITcU,  in  an 
action  against  the  railroad  company,  that  a  nonsuit  should  liave 
been  ordered:  Donnelly  v.  R.  R.  Co.,  109  N.  Y.  16.  Plaintiff's 
clothes  were  caught  by  a  broken  hook  which  fastened  down  the 
curtains  of  defendant's  open  horse-car.  It  did  not  appear  how 
the  hook  broke,  nor  that  any  better  way  of  fastening  curtains 
wa3  known,  nor  that  such  an  accident  had  happened  before. 
It  appeared  that  the  cars  were  inspected  after  each  trip.  Held, 
that  the  court  should  have  ruled  as  matter  of  law  that  plaintiff 
could  not  recover:  Kelly  v.  R.  R.  Co.,  109  N.  Y.  44. 

§  1215.  When  Negligence  for  Jury. — Whenever  there 
is  any  doubt  as  to  the  facts,  it  is  the  province  of  the  jury 
to  determine,  not  only  what  they  are,  but  what  are  the 
proper  inferences  to  be  drawn  from  them.*  Wlien  the 
circumstances  under  which  the  parties  act  are  compli- 
cated, and  the  general  knowledge  and  experience  of  man- 
kind do  not  at  once  condemn  the  conduct  as  careless,  the 
question  of  negligence  is  for  the  jury.''  The  following 
have  been  held  to  bo  questions  of  fact  for  the  jury,  viz.: 
Whether  a  particular  rule  adopted  by  a  railroad  is  suflB- 
cient  for  the  safe  management  of  its  trains;*  whether  a 
defect  in   a  highway   makes   it   unsafe    for    travelers;* 


'  2  TliompsoD  on  Negligence,  12.39; 
Johnson  V.  Bruner,  Gl  Pa.  St.  58;  lOO 
Am.  Dec.  013;  Sawyer  v.  East.  Stbt. 
Co.,  40  Me.  400;  74  Am.  Dec.  403; 
Louisville  etc.  R.  R.  Co.  v.  Collins,  2 
Diivall,  114;  87  Am.  Dec.  486;  Penn- 
sylvania  R.  R.  Co.  v.  France,  112  lU. 
3'JS;  MyiTd  r.  R.  R.  Co.,  113  111.  386. 

Mtavnnrr.OM  Colony  etc.  R.  R.  Co., 
100  Ma«.  208;  97  Am.  Dec.  96;  Pater- 
son  r.  WalLicc,  1  Macq.  748;  Johnson 
t_R.  11.  Co.,  20 N.  Y.  65;  75  Am.  Dec. 
375;  i'hiJaiielphia  etc.  R.  R.  Co.  v. 
Spcarun,  47  Pa.  St.  300;  86  Am.  Dec. 
&4t;  Mangam  v.  R.  R.  Co.,  38  N.  Y. 
455;  !tS  Am.  Dec.  66;  West  Chester 
etc.  R.  R.  Co.  V.  McElwee,  67  Pa.  St. 
311;  Seabrook  v.  Hecker,  2  Robt.  291; 
Haycroft  v.  R.  R.  Co.,  64  N.  Y.  636. 

'  K.  R.  Co.  V.  McLallen,  84  lU.  109. 


♦  McMaugh  V.  Milwaukee,  32  Wis. 
200;  Benedict  v.  Fond  du  Lac,  G  Rep. 
799;  Johnson  v.  Haverhill,  .35  N.  H. 
82;  Perry  v.  John,  79  Pa.  St.  412; 
Stark  V.  Lancaster,  57  N.  II.  88;  Stack 
V.  Portsmouth,  52  N.  H.  224;  Rice 
V.  Moutpelier,  19  Vt.  470;  Cassedy  v. 
Stockbridge,  21  Vt.  391;  Kcl.icy  v. 
Glover,  15  Vt.  709;  Iiidcpendenco  v. 
Joukel,  38  Iowa,  427;  Hall  r.  Lowell, 
10  Cush.  260;  Leicester  r.  Pittsford, 
6  Vt.  245;  Sessions  v.  Newport,  23 
Vt.  9;  Green  v.  Dauby,  12  Vt.  ,3.38; 
Burns  v.  Elba,  32  Wis.  GOo;  IJarstow 
V.  Berlin,  34  Wis.  337;  Cremer  v. 
Portland,  36  Wis.  92;  Hammond  v. 
Mukwa,  40  Wis.  35;  Willey  r.  lielfasfc, 
61  Me.  569;  Hiune  v.  New  York,  47 
N.  Y.  639. 


§1215 


NEGLIOENCBJ. 


2156 


whether  a  person  at  the  time  of  receiving  an  injury  Is 
traveling  upon  the  highway/  or  in  the  exercise  of  duo 
care  in  so  doing;''  whether  notice  can  be  presumed  from 
the  existence  of  a  defect  at  a  certain  time;'  whether  an 
injury  is  the  proximate  result  of  the  defendant's  ncgli- 
gence;*  whether  the  negligence  of  the  plaintiff  con- 
tributed directly  or  proximately  to  the  injury  received;' 
whether  the  plaintiff's  conduct  amounting  per  se  to  con- 
tributory negligence  was  the  proximate  cause  of  the 
injury;"  whether  a  parent  is  in  the  exercise  of  care 
toward  a  child  in  his  keeping;'  whether  a  post  so  stands 
out  in  a  highway  as  to  be  dangerous;*  whether  plaintiff 
was  negligent  in  attempting  to  ride  his  horse  over  a 
bridge  which  he  might  have  known  to  be  out  of  repair;* 
whether  one  was  guilty  of  negligen'  e  in  using  a  sidewalk 
known  by  him  to  be  defective;^"  whether  a  hole  in  a  bridge 
would  frighten  a  horse  of  ordinary  gentleness;"  whether 
a  passenger  in  alighting  on  a  track  instead  of  on  a  plat- 
form was  negligent;"'  whether  a  girl  of  eight,  who  sat 


'  Cummings  v.  Center  Harbor,  57 
N.  H.  17. 

2  PeniLevlvania  R.  R.  Co.  t'.  Mc- 
Tighe,  4U  Ri.  St.  316;  Pox  v.  Sackett, 
JO  Allea,  r);»5;  87  Am.  Dec.  68*2;  Gil- 
lospie  V.  Nuwburgh,  54  N,  Y.  468; 
Bigelow  r.  Iliitlaad,  4  Cush.  247; 
Oaklaud  ,'.  Fielding,  48  Pa.  St.  320; 
llo^od  >:  Deeidel.l,  8  Allen,  522;  Ste- 
ven v.  Boxlorl,  10  Allen,  25;  Williama 
V.  Cliutoii,  28  Conn.  266;  Maloy  v. 
R.  R.  Co.,  58  Barb.  182;  Swift  v. 
Newbury,  06  Vt.  355;  Clayarda  v. 
Dcthick,  12  Q.  B.  439;  Pickens  v. 
Diecker,  21  Ohio  St.  212;  8  Am.  Rep. 
65;  Bitemau  v.  Ruth,  3  Daly,  378. 

sColIcy  V.  VVestbrook,  57  Mo.  181; 
2  Am.  Rep.  30;  Bradbury  v.  Falmouth, 
18  Me.  Ui. 

*  Poeppers  v.  R.  R.  Co.,  67  Mo.  715; 
29  Am.  Hop.  518;  Patten  v.  R.  R. 
Co.,  32  Wu.  524;  Oliver  v.  La  Valle, 
36  Wis.  592;  Fairbanks  v.  Kerr,  70 
Pa.  St.  80;  10  Am.  Rep.  664;  Saxton 
V.  Bacon,  31  Vt.  540;  Littleton  v. 
Richardijon,  32  N.  H.  59;  66  Am. 
Dec.  759. 


*  Fernandez  v.  R.  R.  Co.,  ,')-2  Cal. 
45.  See  also  Bridge  t\  R.  R.  Co., 
3  Mees.  &  W.  248;  Daviea  ?•.  Mann, 
10  Mees.  &  W.  548;  Colchostcr  ■. 
Brooke,  7  Q.  R  337;  RadJuy  r.  K.  R. 
Co.,  L.  R.  9  Ex.  71;  1  App.  Cas. 
754. 

®  North  Pennsylvania  R.  R.  Co.  v. 
Heileman,  49  Pa.  St.  GO;  88  Am.  Dee. 
482;  Catawissa  R.  R.  Co.  r.  -Vrm- 
strong,  52  Pa.  St.  282;  State  /•.  'il.  R. 
Co.,  52  N.  H.  528.  But  suu  R.  K.  Co. 
V.  Houston,  95  U.  S.  697. 

'  Maugam  v.  R.  R.  Co.,  SS  N.  Y. 
455;  98  Am.  Dec.  66;  Kay  r.  11.  R. 
Co.,  65  Pa.  St.  269;  3  Am.  Rep.  C2S; 
Philadelphia  etc.  R.  R.  Co.  ?•.  Long, 
75  Pa.  St.  257;  Pittsburgh  i-tc.  K.  R. 
Co.  V.  Pearson,  72  Pa.  SL  Kil). 

•*  Yeaw  V.  WiUiams,  15  R.  1.  20. 

*  Gulf  etc.  R.  R.  V.  Gasscau.j),  C9 
Tex.  545. 

"Kendall  «.  Albia,  73  Iowa,  241. 
"  Smith  V.  Sherwood,  C2  Mich.  m. 
'^  Roboatelli  v.  R.  R.  Co.,  33  Fed. 
Rep.  796. 


2ir.7 


EVIDENCE — PLEADING  AND   DAMAGES. 


§1215 


down  on  a  curb-stone  to  sharpen  a  pencil  on  her  way  to 
school  and  was  struck  by  a  wagon,  was  in  the  exercise  of 
due  caro;'  whether  plaintiff,  in  an  action  to  recover  for 
personal  injuries  sustained  from  a  defective  sidewalk,  was 
guilty  of  negligence  in  walking  along  without  paying  at- 
tention, the  planking  being  so  rotten  that  the  earth  could 
be  seen  beneath  it;^  whether  plaintiff  was  negligent  in  not 
sending  for  a  physician  sooner  than  he  did;'  whether  one 
is  negligent  in  boarding  a  street-car  while  it  is  moving 
s  )wly;^  whether  one  stepping  from  a  train  after  it  was 
started  was  careless,  and  whether  the  train  was  started  too 
soon;^  whether  it  was  negligence  in  a  railroad  company 
not  to  use  blocks  in  its  yard  between  the  main  rail  and 
the  guard-rail.*  Where  alternatives  are  presented  to  a 
traveler  upon  a  highway  as  modes  of  escape  from  collision 
^vith  an  approaching  traveler,  it  is  a  question  of  fact 
whether  either  might  not  fairly  be  chosen  by  an  intelli- 
gent and  prudent  person.' 

Illt'strations. —  Plaintiff  sued  for  injuries  sustained  from 
an  ex])losion  on  a  steamboat,  on  which  he  was  a  passenger. 
The  explosion  was  not  of  tho  boiler  or  machinery  of  the  boat, 
and  it,  was  doubtful  what  caused  it.  Held,  that  the  question  of 
whether  the  steamboat  company  had  shown  itself  free  from 
fault  was  for  the  jury,  and  that  a  verdict  for  defendant  should 
not  bo  ordered:  Spear  v.  R.  R.  Co.,  119  Pa.  St.  61.  At  a  turn- 
pike a  train  was  divided  to  admit  of  the  passage  of  teams.  A 
approached  with  his  team  and  drove  on  v«'hen  beckoned  to  by  a 
train-hand.  When  he  got  to  the  track  a  noise  was  made  re- 
sembling the  putting  on  of  brakes.  A's  horse  became  unman- 
ageable, and  an  injury  resulted.  Held,  that  the  question  of 
defendxmt's  negligence  was  for  the  jury:  Pennsylvania  R.  R.  Co. 
V.  Horst,  110  Pa.  St.  226.  A  railroad  company  was  sued  by  an 
employee  for  an  accident  claimed  to  have  resulted  from  the  use 
of  a  ropo  instead  of  a  chain  in  coupling  cars  which  lacked  a 
draw-head.    The  court  in  eflfect  charged  tliat,  for  tliis  reason, 

>0'Sli;niqhiies8y«.  Suffolk  Brewing  ♦Stager  v.  R.  R.  Co.,  119  Pa.  St. 

Co.,  14.1  Mass.  669.  70. 

^  Osboruo  V.  J)etroit,  32  Fed.  Rep.  *  Pennsylvania  R.  R.  Co.  v.  Peters, 

36.  IIG  Pa.  St.  206. 

'Osborne  v.  Detroit,  32  Fed.  Rep.  •  Huhn  v.  R.  R.  Co.,  92  Mo.  440. 

3C.  1  Larabee  v.  Sewall,  66  Me.  376. 


§  121C 


NEGLIGENCE. 


2ir,8 


the  plainMff  should  recover.  Held,  error,  the  question  being  for 
the  jury,  aiul  being,  not  whether  a  rope  was  not  as  safe  as  a 
cliain,  but  whether  it  was  reasonably  safe:  Tnhlcr  v.  R.  It.  T'o., 
93  Mo.  70.  The  driver  of  a  wagon  sued  for  injuries  sustained 
from  a  collision  with  a  horse-car.  The  evidence  as  to  the  rate 
of  speed  of  the  car  was  conflicting.  Plaintiff's  statements  wore 
in  some  respects  contradictory.  Held,  that  the  case  was  for  the 
jury,  and  that  it  would  have  been  error  to  nonsuit:  North  Hudson 
County  R.  R.  Co.  v.  Isley,  49  N.  J.  L.  468. 

§1216.  Pleading.  —  Among  the  rules  of  pleading 
which  remain  unchanged  by  the  introduction  of  the  cofle, 
and  which  must,  from  their  nature,  appertain  to  any  sys- 
tem of  pleading,  are  the  requirements  that  pleadings 
must  be  certain,  and  that  the  evidence  must  agree  with  the 
pleadings.'  The  plaintiff  may  not  state  one  act  of  negli- 
gence in  his  declaration,  and  recover  on  proof  of  anoUior 
act.^  A  declaration  for  negligence  is  not  supported  by 
proof  of  negligent  acts  not  specifically  set  out.^  It  is 
sufficient  to  allege  that  a  duty  existed  upon  the  part  of 
the  defendant,  and  that  he  violated  such  dutj^;  but  the 
facts  must  be  stated,  showing  the  legal  liability.  Unless 
the  duty  results,  in  all  cases,  from  the  stated  facts,  the 
declaration  will  be  bad.*  Special  damage  must  bo  stated 
with  great  particularity,  in  order  that  the  defendant  may 
be  enabled  to  meet  the  charge  if  it  be  false;  and  if  it  be 
not  so  stated,  it  cannot  be  given  in  evidence.^  But  un- 
less it  is  sought  to  recover  special  damages,  it  is  not  neces- 
sary, in  an  action  for  personal  injuries,  that  the  injuries 
received  by  the  plaintiff  should  be  particularly  described 
in  the  declaration.  It  is  enough  if  it  is  shown  that  the 
plaintiff  received  a  bodily  injury.®     Nor  need  there  be  a 


*  2  Thompson  on  Negligence,  1247. 

'  Chicago  otc.  R.  R.  Co.  v.  Bell,  112 
111.  3(>0. 

"Wabash etc.  R.  R.  Co.  v.  Coble,  113 
111.  115. 

«  Toledo  etc.  R.  R.  Co.  v.  Weaver,  34 
Ind.  298;  Pittsbur^jli  etc.  R.  R.  Co.  v. 
Troxell,  57  lud.  ifl6;  Brown  v.  Mal- 
lett,  5  Com.  B.  599;  17  L.  J.  Com.  P. 


227;  Seymour  v.  Maddox,  It)  Q.  B, 
32G;  Buffalo  v.  HoUoway,  7  N.  Y. 
493;  57  Am.  Dec.  550;  Taylor  )..  Iiu, 
Co.,  2  Bosw.  106. 

*  1  Chit.tv'a  PI.  414;  Baldwin  v.  R.  R. 
Co.,  4  Gray,  333. 

« Corey  v.  Bath,  35  N.  H.  530; 
Brown  v.  ByroU'da,  47  lud.  435. 


2159 


irV'IDENCE  —  PLEADING   AND    DAMAGES. 


§  1216 


Baldwin  v.  R.  R. 


special  averment  of  prospective  damages,  except  where  a 
father  is  the  plaintiff,  and  is  suing  for  a  prospective  loss 
of  service  of  the  son.*  Where  both  actual  and  exemplary 
damages  for  causing  death  are  sought,  the  allegations 
gliould  be  in  the  nature  of  two  distinct  counts  on  differ- 
ent causes  of  action.*  In  relying  upon  statutory  enact- 
mciits  either  for  a  cause  of  action  or  in  defense,  general 
statutes  must  bo  pleaded  in  general  terms,  while  special 
acts  should  bo  stated  by  their  title  and  date.*  The  fact 
that  the  statute  prescribes  the  signals  to  be  given  by  a 
locomotive  at  a  highway  crossing  does  not  require  the 
plaintiff  in  an  action  founded  on  negligence  to  allege 
that  these  signals  were  not  giv?n,  in  order  that  he  may 
show  that  they  were  not.*  Negligence  on  the  part  of  the 
defendant  is  the  gist  of  the  action,  and  must  be  charged 
in  the  j^laintiff's  petition.^  It  is  not,  however,  absolutely 
necessary  that  it  should  be  averred  in  terms,  if  such  facts 
are  stated  as  will  raise  a  presumption  of  negligence.''  It 
is  not  necessary  to  set  out  the  facts  constituting  the  neg- 
hgence  complained  of.  An  allegation  specifying  the  act 
constituting  the  injury,  and  alleging  that  it  was  negli- 
gently and  carelessly  done,  is  sufficient.'  But  the  act  the 
negligent  doing  of  which  caused  the  injury  must  be  stated. 
A  bare  allegation  that  the  party  was  negligent  is  too  geu- 


1  Gilligan  v.  R.  R.  Co.,1  E.  D.  Smith, 
461. 

'^  ( rulveston  etc.  R.R.  Co.  v.  LeGierse, 
51  Tux.  189. 

^  iShartlo  v.  Minneapolis,  17  Minn. 
308;  Goshen  etc.  Co.  v.  Sears,  7 
Coun.  86. 

'  Kaininitsky  v.  Northeastern  R. 
R.  Co.,  25  S.  C.  5.3. 

0  Wright  V.  R.  R.  Co.,  18  Ind.  168; 
Terro  Haute  etc.  R.  R.  Co.  v.  Smith, 
19  Ind.  42;  Toledo  etc.  R.  R.  Co.  v. 
Weaver,  34  Ind.  298;  JeflFersonville 
etc.  R.  R.  Co.  V.  Martin,  10  Ind.  416; 
Indianapolis  etc.  R.R.  Co.  v.  Williams, 
15  lud.  486;  Toledo  etc.  R.  R.  Co.  v. 
Eidson,  51  Ind.  67;  Quick  v.  R.  R,  Co., 
31  .Mo.  399;  Brown  v.  R.R.  Co.,  33  Mo. 


Ranson  v.  Labranche,  16  La.  Ann. 
122. 

«  Quick  V.  R.  R.  Co.,  31  Mo.  399; 
Brown  r,  R.R.  Co.,  33  Mo.  309;  Dyer  v. 
R.  R.  Co.,  34  Mo.  127;  Burdick  v. 
Worrall,  4  Barb.  596. 

'  St.  Louis  etc.  R.  R.  Co.  t\  Mathias, 
50  Ind.  66;  Indianapolis  etc.  R.  R.  Co. 
V.  Keely,  23  Ind.  133;  Ohio  etc.  R.  R. 
Co.  V.  Selby,  47  Ind.  471;  17  Am.  Rep. 
719;  Pittsburgh  etc.  R.  R.  Co.  v.  Nel- 
son, 51  Ind.  150;  Kesaler  v.  Leeds,  51 
Ind.  212;  Clark  v.  R.  R.  Co.,  15  Fed. 
Rep.  588;  Rowlands.  Murphy, 66 Tex. 
534;  Ottov.  R.  R.  Co.,  12  Mo.  App. 
108;  Mack  v.  R.  R.  Co.,  77  Mo.  232; 
Schneider «.  R.  R.  Co.,  75  Mo.  295; 
Ohio  etc.  R.  R.  Co.  v.  Davis,  23  Ind. 


309;  Dyer  v.  R.  R.  Co.,  34  Mo.  127;    553;  85  Am.  Dec.  477. 


§1216 


NEGLIGENCE. 


2160 


eral  to  support  any  evidence.*  The  fall  particulars  of  the 
derailment  of  defendant's  train  on  which  plaintiff  founds 
his  action  for  i^ersonal  injuries  need  not  bo  set  forth  in 
the  complaint."  In  an  action  against  a  street  cable  rail- 
road  company  for  damages  occasioned  by  the  excessive 
and  improper  width  of  the  grip-slot  at  a  particular  point, 
it  is  not  necessary  for  the  plaintiff  to  plead  or  prove  the 
defendant's  knowledge  of  the  defect.' 

The  plaintiff  need  not,  to  entitle  him  to  double  dam- 
ages  under  a  statute,  claim  them  in  his  petition.*  Facts, 
and  not  conclusions  of  law,  must  be  stated."  It  does  not 
follow,  however,  that  because  negligence  is  a  mixed  vjues- 
tion  of  law  and  fact,  a  general  allegation  of  negligence  is 
pleading  a  legal  conclusion  only."  The  words  "not  s&. 
curely  fenced,  as  required  by  law,"  allege  a  fact,  and  not 
a  conclusion  of  law.'  Matters  strictly  pertaining  to  the 
remedy  may  be  shown  in  evidence  without  being  pleaded.' 
The  complaint  need  not  negative  contributory  negligence 
unless  the  other  averments  suggest  the  inference  that  plain- 
tiff was  guilty.'  The  phrase  "without  fault"  sufficiently 
negatives  contributory  negligence  on  the  part  of  plaintiff.'" 
But  an  allegation  that  plaintiff  "  attempted  "  to  do  a  cer- 
tain thing  carefully  is  not  equivalent  to  the  necessary 
allegation  that  he  was  in  the  exercise  of  due  care."  In  an 
action  for  an  injury  to  a  child,  the  complaint  need  not 
aver  that  the  child  was  not  guilty  of  negligence;  it  is  suf- 
ficient  if  ii  is  averred  that  the  injury  was  inflicted  without 


1  Jcflf.  etc.  R.  R.  Co.  V.  Dunlap,  29 
Ind.  426;  Kennedy  v.  Morgan,  57  Vt. 
4G. 

^  Louisville  and  Nashville  R.  R.  Co. 
V.  Jones,  83  Ala.  376. 

3  Keitel  v.  R.  R.  Co.,  28  Mo.  App. 
657. 

*  Clark  V.  Worthington,  12  Txck. 
571. 

"  Indiana  etc.  R.  R.  Co.  v.  Bishop, 
29  Ind.  202;  Pittsburg  etc.  R.  R.  Co. 
V.  Keller,  49  Ind.  211. 


•Grinde  v.  R.  R.  Co.,  42  Iowa, 
376. 

'  JeflFersonville  etc.  R.  R.  Co.  v, 
Chenoweth,  ,30  Ind.  366;  Indianapolis 
etc.  R.  R.  Co.  V.  Adkins,  23  Ind.  MO. 

»  Kent  V.  Lincoln,  34  Wis.  357. 

»  Street  R.  R.  Co.  v.  Noltheiiius,  40 
Ohio  St.  376;  Louisville  etc.  K.  li.  Co. 
V.  Wolfe,  80  Ky.  82. 

"  Rogers  v.  Overton,  87  Ind.  410. 

"  Thompson  v.  R.  R.  Co.,  57  Mich. 
300. 


2161 


EVIDENCE  —  PLEADING   AND   DAMAGES.  §  1217 


the  negligence  of  the  parents  with  whom  the  child  resided.' 
A  (U  fense  grounded  upon  contributory  negligence  of  the 
plaintiff,  or  the  fact  that  the  injury  resulted  from  inevita- 
ble accident,  must  be  pleaded  specially.'  Evidence  show- 
ing mutter  of  excuse  is  not  admissible  under  the  plea  of 
"not  guilty."" 

^21 7.  Measure  of  Damage — Loss  of  Time — Inca- 
pacity to  Labor — Expenses. — If  the  plaintiff  is,  in  con- 
sciiiionco  of  the  injury,  disabled  from  attending  to  his 
ordinary  business  and  occupation,  he  is  entitled  to  be 
coin[)ensated  in  damages  for  the  time  so  lost.*  The 
amount  of  the  damages  must,  of  course,  depend  upon  the 
calling  in  which  the  plaintiff  was  engaged,  the  amount  of 
money  which  he  was  able  to  earn,  the  steadiness,  regu- 
larity, etc.,  of  his  employment,  and  evidence  on  these 
points  is  relevant."  It  is  held  that  a  jury  cannot  be  said 
to  tako  a  reasonable  view  of  the  case  unless  they  consider 
and  tako  into  account  all  the  heads  of  damage  in  respect 
of  which  a  plaintiff  complaining  of  a  personal  injury  is 
entitled  to  compensation.  These  are,  the  bodily  injury 
sustained;  the  pain  undergone;  the  effects  on  the  health 
of  the  sufferer,  according  to  its  degree  and  its  probable 
duration,  as  likely  to  be  temporary  or  permanent;   the 

'  Pittsburg  etc.  R.  R.  Co.  v.  Vining,  236;  71  Am.  Dec.  2G3;  Grant  v.  Brook- 
27Iivl.  iiVS;  92  Am,  Dec.  269.  lyn,  41  Barb.  381;  Ripon  r.  Bittcl,  30 

2  Kuapii^  V.  Salsbury,  2  Camp.  500;    Wis.  614;  Sheehan  v.  Eilgar,  58  N.  Y. 

631;  Beardsley  v.  Swanu,  4  McLean, 
333;  StaflFord  v.  Oakaloosa,  64  Iowa, 
251.  A  teacher  of  languages  may 
show,  on  the  quostion  of  damages,  the 
number  of  his  pupils  and  the  amount 
of  hia  earnings  in  the  years  prior  to 
the  accident:  Simonin  v.  R.  R.  Co.,  36 
Hun,  214. 


Grant  r~.  Baker,  12  Or.  329.  Contra, 
lioiigh  c.  Bryan,  2  Mees.  &  W.  770. 

="11:111  V.  Fearnley,  3  Q.  B.  919. 
Contni,  Indiana  etc.  R.  R.  Co.  v.  Ruth- 
erfonl,  '2'.)  Ind.  82;  92  Am.  Dec.  3.37. 

'  Rockwell  V.  R.  R.  Co.,  64  Barb. 
438;  ,-.;{  N.  Y.  625;  Masterton  v. 
Mount  Vernon,  58  N.  Y.  391;  Goedno 
r.  Oslikosh,  28  Wis.  300;  Lombard  v. 
Chicago,  4  Biss.  460;   Indianapolis  v. 


*  Nebraska  City  v.  Campbell,  2 
Black,  590;  Rockwell  v.  R.  R.  Co.,  64 
liastoii,  58  Ind.  225;  Pennsylvania  Barb.  438;  53  N.  Y.  625;  Masterton 
etc.  Canal  Co.  v.  Graham,  63  Pa.  St.  v.  Mount  Vernon,  58  N.  Y.  391 ;  Kes- 
291);  (.'hicagoi>.0'Brennan,65  111.  160;  sel  v.  Butler,  53  N.  Y.  612;  Hanover 
Morris  ('.  R.  R.  Co.,  45  Iowa,  29;  Chi-  R.  R.  Co.  v.  Coyle,  55  Pa.  St.  396; 
cajjor.Jones,  66111.  349;  Chicago  etc.  Bait.  etc.  R.  R.  Co.  v.  Boteler,  38 
R  11.  Co.  V.  Wilson,  63  111.  168;  Md.  568. 
Peoria  Bridge  Aas'u  v.  Loomia,  20  111, 
ISO 


§  1217 


NEOLIOENCE. 


21 02 


expenses  incidental  to  attempts  to  effect  a  cure,  or  to 
lo-.-eu  llio  amount  of  injury;  tho  pecuniary  loss  sustaincfl 
tluoui^h  inability  to  attend  to  a  profession  or  business, 
whicli,  again,  may  bo  of  a  temporary  character,  or  may 
be  such  as  to  incapacitate  the  party  for  the  remainder  of 
his  life.'  He  is  entitled  to  damages  for  his  loss  of  (iiuo, 
without  regard  to  the  fact  that  his  employers  nnidc  no 
deduction  from  his  salary.'  A  married  woman  cainiot 
recover  for  loss  of  time  unless  she  was  doing  business  on 
her  own  account.'  And  one  cannot  recover  the  cost  of 
board  during  the  time  he  was  incapacitated,*  nor  for  liis 
own  loss  of  time  and  capacity  to  labor,  and  in  addition 
what  he  has  to  pay  another  to  supply  that  loss  of  labor,' 
But  where  the  plaintiff  has  been  permanently  disalilcd 
from  pursuing  his  usual  avocation,  he  is  entitled  to  re- 
cover compensation  for  the  injury  received.'  Evidenco 
tending  to  show  permanent  injury  as  affecting  the  amount 
of  damages  is  properly  submitted  to  the  jury.'     In  tbo 


'  Phillips  r.  R.  R.  Co.,  L,  R.  5  0. 
r.  D.  'JMO;  Peoria  Bridge  Co.  c.  Looinis, 
20  111.  2^5;  71  Am.  Doc.  203;  Illinois 
Cent.  11.  R.  Co.  v.  Read,  37  111.  484; 
87  Am.  1  >oc.  2G0;  City  of  Ciiicago  v. 
Martin,  49  III.  241;  95  Am.  Dec.  590; 
Pennsylvania  Co.  v.  Books,  57  Pa.  St. 
339;  98  Am.  Dec.  229;  Stafiford  v. 
Oskaloosa,  04  Iowa,  251;  Soeord  w. 
R.  R.  Co.,  18  Fed.  Rep.  221;  5  Mc- 
Crary,  515;  Mackoy  v.  R.  R.  Co.,  18 
Fed.  Rep.  230.  Tho  plaintiff  may 
show  luiw  much  ho  has  earned  annu- 
ally fur  tho  six  or  seven  years  prior 
thereto:  Ehrgott  v.  Now  York,  90 
N.  Y.  204. 

'^  Mi.ssouri  etc,  R.  R.  Co.  v.  Jarrard, 
65  Tux.  500. 

^  Tliomas  v.  Brooklyn,  58  Iowa,  438. 
She  may  testify  that,  at  tho  time  of 
tlie  accident,  she  was  doing  tho  house- 
work for  her  husband  and  eight  chil- 
dren: Joliet  V.  Conway,   119  111.  489. 

*  (Irael)er  v.  Derwin,  43  Cal.  495. 

*  Blackman  v.  Gardiner  Bridge,  75 
Mo.  214. 

*  George  jt.  Haverhill,  110  Mass.  506; 
New  Jersey  Express  Co.  v.  Nichols,  33 


N.  J.  L.  435;  97  Am.  Dec.  722;  Gale 
V.  R.  R.  Co.,  63  How.  Pr.  ;i,S!t;  lit 
Hun,  1;  McLaughlin  v.  Corry,  77  Pa. 
St.  109;  18  Am.  Rop.  432;  (J(.(.<lno  i. 
Oshkosh,  28  Wis.  600;  Haniniona  v. 
Mukwa,  40  Wis.  3G;  Hall  v.  l\nu\  dii 
Lac,  42  Wis.  274;  Wightman  r.  I'lDvi- 
donee,  1  Cliff.  524;  Indianiqiiili.s  i'. 
Gaston,  58  Ind.  225;  Collins  r.  (.'nun- 
cil  Bluffs,  32  Iowa,  325;  7  Am.  Kti), 
200;  Belair  v.  R.  R.  Co.,  43  Iowa,  (;():•; 
Morris  v.  R.  R.  Co.,  45  Iowa,  '.".i;  Tlii- 
Civgo  etc.  R.  R.  Co.  v.  Wilson,  (lU  111. 
107;  Peoria  Bridge  Ass'n  v.  Lmmiis,  jt) 
111.  230;  71  Am.  Dec.  20;!;  Chi- 
cago V.  Elzcman,  71  111.  132;  Nich- 
ols V.  Brunswick,  3  Cliff.  81;  Lmn- 
hard  v.  Chicago,  4  Biss.  460.  \\\me 
a  mechanic  is  permanently  injiiied  hy 
defendant's  negligence,  the  jury  may 
consider  the  probable  expense  to  him 
of  his  future  disability,  although  there 
is  no  proof  of  the  amount  uf  his 
past  earnings:  Staal  v.  R.  K.  Co.,  oG 
Hun,  208. 

'  Kerr  v.  Forgue,  54  111.  482;  5  Am. 
Rep.  146. 


21G3 


EVIDENCE  —  PLEADING  AND  DAMAGES. 


§1218 


case  of  pormanont  disability,  tho  mcasnro  of  damagcg 
ig  sucli  an  amount  as  will  purchaso  an  annuity  equal  to 
tho  interest  on  tho  difTerenco  between  what  tlio  plaintiff 
could  earn  before  and  what  ho  could  earn  after  tho  injury, 
and  not  such  n  principal  sum  as  would  produce  such  in- 
terest.' So  he  may  recover  the  expenses  in  procuring 
medical  and  surgical  attendance,  tho  cost  of  nursing,  at- 
tendance, and  ti>e  likc.^  So  ho  may  recover  for  money 
or  valuables  lost  from  his  person  at  tho  time  i*^  tho  in- 
jury or  in  consequence  thereof.'  In  an  action  against  n 
city  to  recover  for  injuries  sustained  from  a  defect,  in  the 
street,  if  tho  injuries  are  permanent,  tho  ^jarty  may  re- 
cover prospective  as  well  as  past  damages,  not  o.w.oeding 
the  amount  claimed  in  the  complaint.* 

Illustrations. — A  statute  gave  a  right  of  action  against  a 
town  for  damage  "to  any  person,  his  team,  carriage,  or  other 
property,"  caused  by  reason  of  the  insufficiency  or  want  of  re- 
pair of  any  highway.  Held,  that  a  man  might  recover  under 
tho  statute  for  loss  of  his  wife's  services,  and  the  expenses  of 
her  sickness  resulting  from  an  accident  caused  by  a  defective 
iiighway:  JIunty.  Town  of  Winfield^  36  Wis.  154;  17  Aia.  Rep. 
482. 


§  1218.    Fain  and  Suffering— Physical  and  Mental. — 

Tho  physical  pain  and  suffering  to  which  tho  plaintiff  is 
subjected  as  a  consequence  of  tho  personal  injury  is  an 
element  of  damage  for  which  ho  is  entitled  to  be  compen- 


'  Houston  etc.  R.  R.  Co.  v.  Willie, 
53Tox.  318;  H7  Am.  Rep.  750. 

'Knlsoni  V.  Uiulerhill,  30  Vt.  581; 
Mnnis  r.  11.  R.  t'o.,  45  Iowa,  29;  Clii- 
cago  etc.  R.  H.  Co.  v.  Wilson,  ().3  111. 
1G7;  Pooria  IJridgo  Ass'n  v.  Loomis, 
20111.  2M;  71  Am.  Dec.  2G3;  Chicago 
I'.  O'BiciMian,  65  111.  1G2;  Chicago  v. 
JniR's,  Gil  111.  ;5-i9;  Chicago  v.  Langlass, 
6()  111.  '^lil ;  licarilsley  v.  Swann,  4  Mc- 
Lean, 'A^.V^^,  Ware  v.  St.  Paul  Water 
tV,  1  Dill.  405;  Gale  v.  R.  R.  Co.,  13 
Hun,  1;  Gooilno  v.  Oshkosh,  28  Wis. 
300.  But  only  upon  proof  of  their 
value:  Reed  v.  R.  R.  Co.,  57  Iowa,  23. 
Aud  even  for  gratuitous  servicca  of 


this  kind:  Indianapolis  v.  Collins,  58 
Ind.  227;  Pennsylvania  R.  R.  Co.  v. 
Marion,  104  Ind.  239.  Where  one  in- 
jured by  reason  of  tho  negligence  of 
another  employs  a  nurse,  the  expense 
is  not  to  he  rejected  as  an  elonient  of 
damage  for  tiie  reason  that  the  person 
so  injured  has  a  wife  and  daughter: 
Kendall  v.  Albia,  73  Iowa,  241.  A 
married  woman  can  recover  exjKjnsea 
for  medical  attendance:  Schulte  v. 
Holliday,  54  Mich.  73. 

*  Woodman  v.  Nottingham,  49  N.  H. 
387;  6  Am.  Rep.  520. 

*  Weiaenbergr.  City  of  Appletou,  20 
Wis.  66;  7  Am.  Rep.  39. 


§1218 


NEGLIOENCE. 


21G4 


sated.*  This  includes  not  only  the  suffering  experienced 
before  the  trial,  but  such  as  is  reasonably  certain  to  result 
from  the  injury  afterward.'*  f7here  a  second  amputation 
of  a  leg  for  an  injury  to  which  damages  are  claimed  will 
soon  be  necessary,  the  fact  is  properly  considered  as  an 
element  of  damages.*  A  disease  directly  resulting  from 
personal  injuries  received  may  be  considered  as  an  ele- 
ment of  damage,  although  such  result  is  unusual.*  Al- 
though one  injured  by  negligence  had  a  predisposition  to 
disease,  the  measure  of  damages  is  based  on  his  condition 
without  regard  to  the  fact  of  the  predisposition.^  But  iu 
order  that  damages  may  be  recovered  for  the  results  of  a 
disease  claimed  to  have  been  caused  by  a  fall,  it  must 
clearly  appear  by  reasonable  inference  that  the  fall  was 
the  actual  cause  of  the  disease.®  In  like  manner  the  plain- 
tiff is  entitled  to  recover  for  mental  suffering  resulting  from 
the  injury.'  And  it  is  held  that  the  plaintiff  may  recover 
for  the  fear  and  mental  agony  produced  by  the  peril  to 
which  he  is  exposed  at  the  time  of  the  injury  complained 


'  Hagaa'a  Petition,  5  Dill.  96; 
Cooper  i'.  MuUins,  30  Ga.  152;  76 
Am.  Dec.  638;  Pennsylvania  R.  R. 
Co.  V.  Allen,  53  Pa.  St.  276;  Pittsburg 
etc.  R.  R.  Co.  V.  Donahu';,  70  Pa.  St. 
119;  Beardsley  v.  Swann,  4  McLean, 
333;  Chicago  v.  Elzeman,  71  111.  131; 
Chicago  V.  Jones,  66  111.  349;  Peoria 
Bridge  Ass'n  v.  Loomis,  20  111.  236; 
71  Am.  Dec.  263;  Rowell  v.  Williams, 
29  Iowa,  217;  Indianapolis  v.  Gaston, 
58  Ind.  225;  Collins  v.  Council  Bluffs, 
32  Iowa,  329;  7  Am.  Rep.  200;  Mor- 
ris V.  R.  R.  Co.,  45  Iowa,  29;  Mason 
V.  Ellsworth,  32  Me.  271;  Rockwell  v. 
R.  R.  Co.,  64  Barb.  438;  Gale  v.  R.  R. 
Co.,  53  How.  Pr.  389;  13  Hun,  1;  Mc- 
Lauglilin  v.  Corry,  77  Pa.  St.  109;  18 
Am.  Rep.  432;  Goodno  v.  Oshkosh,  28 
Wis.  .300;  Hammond  v.  Mukwa,  40 
Wis.  35;  Penn.  etc.  Canal  Co.  v.  Gra- 
ham, 63  Pa.  St.  290;  3  Am.  Rep.  549. 
Where  iu  an  action  to  recover  for  the 
mangling  and  crushing  of  his  arm  the 
plaintiff  proves  the  injury  and  the  con- 
dition of  the  arm,  no  further  evidence 


that  he  suffered  pain  is  necessary  to 
justify  the  jury  in  makmg  tlie  pain 
suffered  an  element  of  damage:  Chi- 
cago etc.  R.  R.  Co.  V,  Warner,  108 
111.  538. 

»  Aaron  v.  R.  R.  Co.,  2  Daly,  127. 

»  Gumming  v.  R.  R.  Co.,  38  Hun, 
362. 

*  Houston  R.  R.  Co.  v.  Leslie,  57 
Tex.  83. 

*  Louisville  etc.  R.  R.  Co.  v.  Fal- 
vey,  104  Ind.  409. 

*  Houston  V.  Traphagcn,  47  N.  J."L. 
23. 

'  Peoria  Bridge  Co.  v.  Loomis,  20 
111.  236;  71  Am.  Dec.  2G3;  Indianapolis 
etc.  R.  R.  Co.  V.  Stables,  62  111.  313; 
Ware  v.  St.  Paul  Water  Co.,  1  Dill. 
465;  Wright  v.  Comptoii,  53  Ind.  .337; 
Stewart  v.  Ripon,  38  Wis.  587;  Can- 
ning V.  Williamstown,  1  Cush.  451; 
Pennsylvania  etc.  R.  R.  Co.  v.  Gra- 
ham, 63  Pa.  St.  290;  3  Am.  Rep.  549; 
Porter  v.  R.  R.  Co.,  71  Mo.  66;  36 
Am.  Rep.  454.  But  see  Johnson  », 
WeUs,  6  Nev.  224j  3  Am.  Rep.  245. 


21G4 


21G5 


EVIDENCE  —  PLEADING   AND   DAMAGES. 


§  1219 


experienced 
ain  to  result 
amputation 
claimed  will 
idered  as  an 
suiting  from 
jd  as  an  ele- 
lusual.*    Al- 
isposition  to 
bis  condition 
Lon.°     But  in 
e  results  of  a 
fall,  it  must 
the  fall  was 
aer  the  plain- 
esultingfrom 
[  may  recover 
r  the  peril  to 
Y  complained 

in  is  necessary  to 
making  the  pain 
of  damage:  Chi- 
V.  Warner,  103 

o.,  2  Daly,  127. 
R.  Co.,  38  Hun, 

Co.  V.  Leslie,  57 

L.  R.  Co.  V.  Fal. 

lagen,  47  N.  J.'L. 

o.  V.  Loomis,  20 
263;  Indianapolis 
ibles,  (52  111.  313; 
^ater  Co.,  1  Dill. 
>toii,  53  Ind.  337; 
i  Wis.  587;  Can- 
fn,  1  Cush.  451; 
1  R.  Co.  V.  Gra- 
fs Am.  Rep.  549; 
71  Mo.  66;  36 
see  Johnson  v. 
\  Am.  Rep.  245. 


of.'  In  an  action  for  personal  injuries,  the  only  mental 
riull'ering  that  may  be  proved  is  that  of  the  plaintiff  due 
to  the  injury  itself;  and  evidence  of  his  anxiety  about  the 
safety  of  others  is  not  admissible.^ 

§  1219.  Exemplary  and  Punitory  Damages.  —  Exem- 
plary, vindictive,  or  punitive  damages  are  given  in  cases 
wlicrc  the  injury  was  willfully  or  wantonly  inflicted,  or 
shows  such  a  gross  want  of  care  as  to  justify  the  pre- 
sumption of  willfulness  or  wantonness.'  Whether  the 
case  is  one  for  exemplary  damages  is  a  question  to  be 
determined  by  the  court.*  In  the  following  cases  it  was 
held  that  the  evidence  justified  exemplary  damages: 
Where  the  defendant  fired  a  pistol  in  shooting  at  a  mark,^ 
and  the  ball  struck  some  other  object,  and  glanced  and 
hit  the  plaintiff,  and  it  was  found  that  the  injury  was  un- 
intentional, but  was  the  result  of  gross  and  culpable  negli- 
gence on  the  part  of  the  defendant;*  where  the  plaintiff  was 
attacked  by  vicious  dogs  belonging  to  the  defendant  (who 
knew  their  dangerous  character,  and  allowed  them  to  run  at 
large),  and  his  clothing  was  torn  and  his  person  injured, 
and  parcels  of  goods  in  his  possession  were  destroyed.® 
In  the  following  cases  it  was  held  that  the  following  facts 


^  Seger  v.  Barkhamsted,  22  Conn. 
298;  blasters  v.  Warren,  27  Conn,  294; 
Oliver  v.  La  Valle,  36  Wis.  598; 
Cooper  V.  Mullins,  30  Ga.  152;  76 
Am.  Dec.  639;  Smith  v.  R.  R.  Co.,  30 
Miiiu.  160.  The  pain  of  being  fast- 
euel  for  half  an  hour  in  the  wreck  of 
a  railroad  train  may  be  considered  on 
the  quustidu  of  damages:  Quinn  v.  R. 
R.  C'd.,  34  Hun,  331.  Conira.  Canning 
I'.  Williaiiistown,  1  Cush.  452. 

''  Koyes  v.  R.  R.  Co  ,  36  Minn.  290. 

'  Kiluliiian  V.  St.  Louis  Transfer  Co., 

3  Mo.  App.  503;  Leavenworth  etc. 
R.  R.  Co.  „.  Rice,  10  Kan.  426;  Jack- 
3nn  I'.  .Schmidt,  14  La.  Ann.  807;  Illi- 
nois etc.  R.  R.  Co.  V.  Welch,  52  111. 
184;  Murphy  v.  R.  R.  Co.,  29  Conn. 
490;  Welch  V.  Durand,  .36  Conn.  182; 

4  Am.  R<p.  55;  Emblen  v.  Myers,  • 
Hurl.  &  If.  54;  Hull  v.  Richmond,  2 


Wood.  &  M.  346;  Whipple  v.  Walpole, 
ION.  H.  130;  Hawesw.  Knowles,  114 
Mass.  518;  19  Am.  Rep.  383;  Parker 
V.  Jenkins,  3  Bush,  587;  Jacobs  v. 
R.  R.  Co.,  10  Bush,  263;  Peoria  Bridge 
Co.  V.  Loomis,  20  111.  235;  71  Am. 
Dec.  263.  Cont7-a,  Fay  v.  Parker,  53 
N.  H.  342;  16  Am.  Rep.  270. 

*  Chicago  V.  Martin,  49  111,  241;  95 
Am.  Dec.  590;  Heil  v.  Glanding,  42 
Pa.  St.  493;  82  Am.  Dec.  537;  Morford 
V.  Woodworth,  7  Ind.  83;  Murphy  v. 
R.  R.  Co.,  29  Conn.  499;  Ware  v. 
St.  Paitl  Water  Co.,  1  Dill.  465; 
Kountz  V.  Brown,  16  B.  Mon.  586; 
Chiles  V.  Drake,  2  Met.  (Ky.)  146;  74 
Am.  D    .  406. 

*  Welch  V.  Durand,  36  Conn.  182j 
4  Am.  Rep,  55, 

*  Van  Fragstein  v.  Windier,,  2  Mo. 
App.  598. 


§  1210 


NEGLIGENCE. 


2166 


did  not  justify   exemplary  damages:    In   an  action   for 
injuries  sustained  by  the  negligence  of  the  defendant's 
servant,  the  fact  that  he  was  not  discharged,  but  was  re- 
tained  in  the  defendant's  employ;^  where  the  plaintiff 
was  injured  by  the  falling  wall  of  a  house  which  was  iu 
the  process  of  being  demolished,  and  the  proprietor  bad 
constructed  a  barrier  on  the  sidewalk  to  prevent  people 
from  passing  in  front  of  the  building,  but,  through  an 
error  of  judgment,  had  not  made  it  sufficient  for  the  pur- 
pose,  and   the    plaintiff  was   injured   in   consequence;* 
where  a  brakeman,  in  the  discharge  of  his  duty,  was 
injured  by  a  projecting  awning,  although  the  attention 
of  the  railroad  authorities  had  been  called  to  its  danger- 
ous condition.'     In  Illinois,  it  is  held  that  a  corporation 
cannot  be  made  liable  in  exemplary  damages  for  an  in- 
jury resulting  from  the  gross  negligence  of  an  employee.* 
And  it  has  been  held  that  exemplary  damages  are  not  to 
be  given  against  municipal  corporations.®     But  vindictive 
or  exemplary  damages  have  been  sustained  against  muni- 
•cipal  corj)orations  in  some  cases.®     If  the  case  justifies 
exemplary  damages,  and  the  court  instructs  the  jury  that 
the  plaintiff  is  entitled  to  compensatory  damages  only,  it 
is  error,  although  the  jury  allowed  exemplary  damages.^ 


*  Edelman  v.  St.  Louis  Transfer  Co., 
3  Mo.  Ai)p.  503. 

^  Jackson  v.  Richmond,  14  La.  Ann. 
806. 

3  Illinois  etc.  R.  R.  Co.  v.  Welch, 
52  III.  184;  4  Am.  Rep.  593. 

*  Illinois  etc.  R.  R.  Co.  v.  Hammer, 
72  111.  353,  the  court  saying:  "A 
private  corporation  cannot  l)e  liable 
to  punitive  damages  merely  for  gross 
negligence  of  its  servants.  If  the  com- 
pany employs  incompetent,  drunken, 
or  reckless  servants,  knowing  them  to 
be  such,  or,  having  employed  them 
without  such  knowledge,  retains  them 
after  learning  the  fact,  or  after  full 
opportunity  to  learn  it,  the  company 
would  no  doubt  bo  liable.  Or  if  its 
servants,  whilst  in  the  employment  of 
the  company,  and  engaged  in  carrying 
on  the  business  of  the  company,  ahoula 


willfully  or  wantonly  produce  injury  to 
others,  then  the  company  \vould  no 
doubt  be  liable  to  such  damages. 
With  its  servants  a  mere  omission  of 
duty,  although  grossly  negligent, 
should  not  be  sufficient;  but  some 
intention  to  inflict  the  injury,  or  a 
reckless,  wanton  disregard  for  the 
safety  of  others  should  appear  to 
warrant  punitive  damages." 

*  Chicago  V.  Langlaas,  52  111.  256; 
4  Am.  Rep.  603;  Decatur  v.  Fisher, 
53  111.  407;  Chicago  v.  Jones,  CG  111. 
349;  Chicago  v.  Kelly,  69  111.  477; 
Chicago  V.  Martin,  49  111  246;  95  Am. 
Dec.  590;  Woodman  v.  Nottingham, 
49  N.  H.  387;  6  Am.  Rep.  526. 


« Whipple   V.  Wahjole,    10  N.^H, 
Myers  v.  San  Fr; 
215. 


130;  Myers  v.  San  Francisco,  42  Cal. 
15. 
T  Bass  V.  R.  R.  Co.,  39  Wis.  636. 


2107     EVIDENCE PLEADING  AND  DAMAGES.     §§  1220,  1221 

§  1220.     Miti^tion  of  Damages. — Where  the  plaintiff 

has  been  guilty  of  negligence,  but  of  such  a  nature  as  not 

to  be  a  bar  to  the  action,  such  negligence  is  sometimes 

allowed  to  be  considered  by  the  jury  in  mitigation  of 

damages.^     If  one  by  his  negligence  subsequent  to  the 

accident  for  which  he  claims  compensation  aggravates  his 

injuries,  he  is  not  entitled  to  damages  for  the  injuries  as 

thus  aggravated.^     One  who,  injured  through  another's 

negligence,  aggravates  the  injury  by  refusing  to  submit 

to  a  surgical  operation,  proper  and  necessary  under  the 

circumstances,  is  entitled  only  to  such  damages  as  would 

have  resulted  had  he  submitted  to  the  operation.^     The 

defendant  cannot  show  in  mitigation  of  damages  that 

the  plaintiff  was  insured  in  an  accident  policy,  and  that 

the  money  was  paid  to  him  in  consequence  of  the  injury;* 

nor  can  the  damages  be  mitigated  by  the  fact  that,  after 

the  plaintiff  is  injured,  a  charitable  subscription  is  taken 

up  and  the  money  paid  to  him;^  nor  will  wages  received 

by  the  plaintiff  after  the  injury  go  to  the  mitigation  of 

damages." 

Illustrations. — In  an  action  to  recover  damages  for  an  in- 
jury caused  by  defendant's  negligence,  phdntifi'  claimed  dam- 
ages for  being  disabled  to  practice  his  profession  as  a  physician. 
Held,  that  defendant  might  introduce  evidcmce  as  to  his  pro- 
fessional reputation,  and  as  to  the  unlawfulness  of  his  practice: 
Jacques  v.  R.  R.  Co.,  41  Conn.  61;  19  Am.  Rep.  483. 


§  1221.    Amount  of  Damages — Verdicts  Sustained. — 

The  amount  of  damages  to  be  allowed  is  a  question  for 
the  jury,  and  its  discretion  will  not  be  interfered  with  by 


'2  Thompson  on  Negligence,  1271; 
citing  Matthews  v.  Waruer'a  Admin- 
istrator, 29  Gratt.  578;  Gould  v.  Mc- 
Kenua,  80  Pa.  St.  297;  27  Am.  Rep. 
lOJ;  (i  Rep.  343;  Nashville  etc.  R.  R. 
Co.  V.  Smith,  6  Heisk.  174;  Cary  v. 
Day,  3G  Conn.  157.  See  ante.  Con- 
tributory Negligence. 

■  Owens  V.  R.  R.  Co.,  35  Fed.  Rep. 
115. 


3  Gulf  etc.  R.  R.  Co.  v.  Coon,  69 
Tex.  730. 

♦  Bradburn  v.  R.  R.  Co.,  L.  R.  10 
Ex.  1 ;  Harding  v.  Townshend,  43  Vt. 
53(5;  5  Am.  Rep.  304. 

^  Norristown  v.  Moyer,  67  Pa.  St. 
356. 

**  McLaughlin  v.  Corry,  77  Pa.  St. 
109;  18  Am.  Rep.  432. 


§  1221 


NEGLIGENCE. 


21G8 


the  court,'  except  where  it  is  clearly"  against  the  evidence, 
or  is  so  inadequate  or  excessive  as  to  raise  the  inference 
that  the  verdict  was  the  result  of  passion  or  prejudice- 


*  Danville  etc.  R.  R.  Co.  v.  Stewart,  2 
Mft,  (Ky. )  12-2;  Iiim1>all  /•.  Bath,  38 Me. 
2-l'2\  01  ^Vin.  Due.  '24:'.;  Jacobs  v.  Ban- 
gor, 10  Mc.  19'_>:  .S3  Am.  Dec.  052; 
RlcKinley  v.  R.  R.  Co.,  44  Iowa,  322; 
21  Am.  Rtp.  748;  Hcil  r.  Glanding, 
42  Pa.  St.  493;  82  Am.  Doc.  537. 

-  Mobilo  etc.  R.  R.  v.  Ashcraft,  48 
All.  15;  Whipple  V.  R.  R.  Co.,  11 
riiila.  345;  Reuwitz  v.  Waggaman,  33 
La.  Ann.  20;  Central  R.  K.  v.  Smith, 
70  Ga.  209;  2  Am.  St.  Rep.  31;  Int. 
etc.  R.  R.  V.  Tel.  Co.,  09  Tex.  277;  5 
Am.  St.  Rep.  45.  In  Phillips  v. 
R.  R.  Co.,  L.  R.  5  C.  P.  D.  280, 
42  L.  T.,  N.  S.,  0,  it  was  said  by  the 
court  that  the  judges  have  no  right 
to  differ  from  or  overrule  the  ver- 
dict of  the  jury  because  they  take 
a  difl'erout  view,  and  merely  because 
thty  differ,  llie  judges  may  think 
that  if  they  had  been  the  jury  they 
would  have  given  a  little  more  or 
wouM  have  given  a  little  less.  Still, 
there  is  this  rule,  that  the  verdicts  of 
juries  in  all  these  cases  are  subject, 
and  must  for  the  sake  of  justice  be 
subject,  to  the  careful  tiupervision  of  a 
court  of  first  instance,  and  if  neces- 
sary, of  a  court  of  appeal,  in  this  way: 
that  if  in  the  judgment  of  the  court 
tl'.e  damages  given  are  unreasonably 
l;n\:,'c,  or  if  they  are  unreasonably 
small,  then  the  court  is  bound  to  act 
upon  the  conclusion  thus  arrived  at, 
and  must  send  the  case  again  to  be 
tried.  Verdicts  for  tlie  following 
amounts  have  been  sustained  on  ap- 
jtoal:  .$703  for  bruises  that  were  cured 
in  a  few  months,  an  1  for  the  loss  of 
t!ie  sense  of  hearing,  the  plaintiff  being 
a  child:  Davis  v.  R.  Tl.  Co.,  GO  Ga. 
329;  Sl.OOJfor  fracturing  a  woman's 
thigh,  shortening  one  leg  and  causing 
her  to  bo  confined  motionless  for  six 
weeks  between  the  sandbags:  Shea 
V.  Roeins,  3(3  La.  Ann.  900;  .$1,000  for 
tlie  fracture  of  her  riglit  arm  at  the 
wrist:  Chicago  v.  Jones,  GO  111.  349; 
^1,500  for  the  fracture  of  her  left  arm, 
«lislocation  at  the  wrist,  and  bruise  of 
her  left  side:  Benedict  v.  Fond  du 
Lac,  44  Wis.  495;  $1,500  for  a  serious 
injury  to  the  leg:  Garliek  v.  Pella,  53 


Iowa,  641;  $1,841  for  a  broken  Ic" 
Slieff  V.  Huntington,  16  W.  Va.  ;!07; 
$2,000  for  an  injury  to  a  woman,  c;iua- 
ing  a  redscarriago:  Joliet  v.  Conway, 
17  111.  App.  577;  $2,000  for  an  injury 
resulting  in  an  incurable  affect''  ii  df 
tho  spinal  cord:  Waldron  i>.  St.  Paul, 
33  Minn.  87;  $2^00  for  tho  brealcing 
of  the  hip-bone:  Westerville  v.  Free- 
man, CO  Iwl.  255;  Hayward  v.  Merrill, 
94  III.  349;  $2,750  for  dislocation  of  the 
hip-joint,  and  fracture  of  one  of  the 
spinal  vertebrte:  Houfe  v.  Fulton,  ;u 
Wis.  608;  17  Am.  Rep.  463;  $_»,900 
for  a  dog-bite  on  the  hip,  two  inches 
in  depth,  causing  hip-disease  superiii- 
duced  by  hereditary  scrofula:  Fitz- 
gerald V.  Dobson,  78  Me.  559;  .S3,L'00 
for  loss  of  use  of  the  arm,  from  a  griij- 
ual  wasting  away  of  the  muscles,  giv- 
ing her  constant  pain:  Ottawa  r. 
Sweely,   65    111.   434;    $3,500,   where 

f)laintiff  had  his  arm  and  leg  fractured, 
lis  collar-bone  broken,  and  his  .sjiine 
injured:  Klutts  v.  R.  R.  Co.,  75  Mo, 
642;  $3,500  for  crushing  a  leg  of  a 
child  twelve  old,  so  as  to  cause  a  per- 
manent injury:  Houston  etc.  R.  11.  Co. 
V.  Simpson,  60  Tex.  103;  $4,000  for  a 
compound  fracture  of  the  left  arm, 
and  a  partial  dislocation  of  the  ellxiw, 
impairing  the  use  of  the  arm  for  life; 
Van  Winter  v.  Henry  County,  01 
Iowa,  684;  $4,000  for  a  fracture  of  tiie 
patella  of  the  left  knee,  causing  per- 
manent disability:  Chicago  v.  Crooker, 
2  111,  App.  279;  $4,000,  where  the 
table  of  the  skull  was  cracked,  aiiJ 
final  palsy  threatened:  Hanson  i:  R. 
R.  Co.,  62  Me.  84;  16  Am.  Rep.  404; 
$4,500  for  the  permanent  disablement 
of  the  right  hand:  Schultz  v.  11.  R, 
Co.,  48  Wis.  375;  $4,700  for  the  loss 
of  a  hand,  and  for  other  bruises:  Cen- 
tral R.  R.  Co.  V.  De  Bray,  71  Vta.  400; 
$5,000  for  an  injury  by  which  ho  was 
wholly  disabled  from  work  for  nine 
months,  and  partially  for  life,  leaviug 
one  leg  shorter  than  the  other,  and 
causing  occasional,  incurable  pain: 
Texas  etc.  R.  R.  Co.  v.  McAfee,  01 
Tex.  695;  $5,000,  where  his  three 
ribs  were  crushetl,  and  his  leg  severely 
wounded,  lameness  having  lasted  for 


2109 


EVIDENCE  —  PLEADING   AND   DAMAGES. 


§1221 


e  evidence, 
3  inference 
prejudice- 

a  broken  lo;^; 
J  W.  Va.  :!()7; 
I  woman,  caiu- 
Dt  I'.  Conway, 
)  for  an  injury 
>le  affect''  11  (i{ 
on  i\  St.  Paul, 
ir  tho  breaking 
erville  v.  Frue- 
vard  V.  Merrill, 
islocation  of  tho 
1  of  one  of  the 
B  V.  Fulton,  34 
jp.  463;  $--'.90O 
hip,  two  inches 
iisease  sniieriu- 
scrofula:    Fitz- 
Vie.  559;  S3,'200 
•ra,  from  a  graJ- 
lie  muscles,  giv- 
tin:    Ottawa    r. 
$3,500,   where 
id  leg  fractured, 
1,  and  his  s])ine 
R.  Co.,  75  Mo, 
ling  a  leg  of  a 
3  to  cause  a  per- 
m  etc.  R.  11.  Co, 
>3;  $4,000  for  a 
the   left  arm, 
>n  of  the  ell  low, 
;he  arm  for  life; 
■y    County,    01 
fracture  fif  the 
le,  causing  iier- 
|cago  V.  Crookcr, 
where  the 
crackeil,  anJ 
Hanson  *■.  R. 
Am.  Rep.  404; 
nt  disablement 
Ihultz  V.  11.  R. 
loo  for  the  losa 
ir  bruises:  Cen- 
■ay,  71  (Ja.  400; 
which  he  was 
work  for  nine 
:or  life,  leaviug 
lie  other,  and 
icurable    paiu: 
V.  McAtee,  01 
icre    liis    three 
bis  leg  sc\-erely 
ing  Tasted  for 


Where  tho  case  is  one  for  compensatory  damages  only, 
and  it  appears  that  the  jury  lias  given  vindictive  or  ex- 
emplary damages,  the  verdict  will  be  set  aside.' 


nine  months,  and  being  likely  to  last 
longer,  possibly  for  life:  Quiun  r.  R. 
R,  Co,,  34  Hun,  331;  $5,000,  where  an 
incurable  disease  of  the  lungs  resulted 
from  the  accident:  Schafer  v.  Gilmer, 
Vi  Nov.  330;  $5,000,  where  the  plain- 
tiff was  rendered  a  permanent  invalid: 
Cliicago  V.  Langlass,  60  111.  301 ;  $5,000, 
where  tho  use  of  one  leg  was  perma- 
nently destroyed:  Hintoni'.  R.  R.  Co., 
G5  Wis.  323;  $5,000  for  contusion  of 
the  scalp  and  chest:  Houston  etc.  R. 
R.  Co.  V.  Boehm,  57  Tex.  152;  $5,000 
for  a  fracture  of  the  thigh-bone,  by 
which  plaintiff  was  rendered  a  cripple 
for  life:  Chicago  City  R.   R.  Co.  v. 
Muraford,  97  111.  560;  $5,000  for  de- 
generation of  the  spinal  cord:  Wardle 
r  R.  R.  Co.,  35  La.  Ann.  202;  $7,000, 
wiiere  plaintiff's  thigh  was  broken  in 
two  places,  so  as  to  endanger  his  life, 
and  he  was  otherwise  injured:  Marion 
!•.  R.  K.  Co.,  G4  Iowa,  5C8;  $7,000, 
where  the  plaintiff's  injury  consisted 
of  a  fracture  of  the  skull,  bruises,  a 
permanent  injury  to  one  eye,  and  a 
loss  of  memory:  Macon  etc.  R.  R.  Co. 
V.  Winn,   26  Ga.   250;  $7,500  for  a 
fracture  of  the  lower  vertebrae,  tho  in- 
jury resulting  in  permanent  i^aralysis 
of  her  lower  extremities:  Chicago  v. 
Herz,  87  111.  541;  $8,000  for  the  loss 
of  an  infant's  right  arm:   Schmidt  v. 
R.  R.  Co.,  23  Wis.  180;  99  Am.  Dec. 
158;  $8,000  in  the  case  of  an  accident 
rendering  a  strong  man  helpless  for 
life:  Draper  v.   Baker,  61  Wis.  450; 
50  Am.  Rep.  143;  $8,000  for  injuries 
likely  to  be  permanent,  considerably 
affecting  her  general  health,  and  cans- 
iugpain:  Harold  v.  R.  R.  Co.,  13  Daly, 
378;  §8,000  for  an  injury  to  a  person 
tifty-two  years  old,  confining  him  to 
his  bed  nine  weeks,  and  resulting  in  <a 
permanent  shortening  of  his  leg  about 
two  and  one  half  inches:  Funston  v. 
R.  R.  Co.,  61  Iowa,  452;  $8,958  for  a 
permanent  injury  to  the  spine:   111. 
leut.  R.  R.  Co.  V.  Parks,  88  111.  373; 
$9,0UO,  where  the  bone  of  his  thigh  was 

'  Goodno  V.  Oshkosh,  28  Wis.  304; 
Nashville  etc.  R.  R.  Co.  v.  Smith,  6 
Heiak.  174;  Chicago  v.  KeUy,  69  111. 


crushed,  and  he  received  severe  inter* 
nal  injuries;  his  sufferings  were  pro- 
tracted and  most  intense;  for  he  had 
to  endure  for  seven  weeks  the  excru- 
ciating torture  of  machinery  and  ap- 
pliances used  by  surgeons  to  prevent  a 
shortening  of  his  limb,  which,  however, 
were  unavailing:  Deppe  i\  R.  R.  Co., 
38  Iowa,   592;  and   see  Campbell  v. 
Portland  Co.,  62   Mo.  552;    16  Am. 
Rep.  503;  $10,000  for  the  loss  of  the 
right  arm  at  the  wrist:  Union  Pacific 
R.   R.   Co.   V.   Young,   19  Kan.  488; 
$10,000  for  the  loss  of  an  arm:  Ketch- 
um  V.  R.  R.  Co.,  38  La.  Ann.  777; 
Robinson  v.  R.  R.   Co.,  48  Cal.  409; 
$10,000  for  the  loss  of  a  leg:  Atchison 
etc.  R.  R.  Co.  V.  Moore,  31  Kan.  197; 
$10,000  for  a  permanent  injury  from 
which  the  plaintiff  will  sooner  or  later 
die:   Carthage  Turnpike  Co.    v.   An- 
drews, 102  Ind.  138;  52  Am.  Rep.  653; 
$11,000  for  the  loss  of  a  leg,  and  a 
permanent  disability:  Berg  v.  R.  R. 
Co.,  50  Wis.  419;  $15,000  for  a  per- 
manent injury  incapacitating  him  from 
working:  Gulf  etc.  R.  R.  Co.  v.  Dot- 
sey,  66  Tex.  148;  $1,500  for  an  injury 
totally  ruining  the  plaintiff's  liealth: 
Woodbury  v.  District  of  Columbia,  5 
Mackey,  127;  $15,000,  where  his  right 
shoulder  and  some  ribs  were  broken, 
his  right  arm  disabled,  a  ieg  had  to  be 
amputated,  and  he  was  contined  to  his 
bed  nearly  six  weeks:  Solen  v,  R.  R. 
Co.,  13  Nev.  106;  $15,000  for  the  loss 
of  the  both  legs:  Barksdull  v,  R.  R. 
Co.,  23  La.  Ann.  180;  $15,000  for  the 
fracture  of  the  thigh-bone,  causing  the 
plaintiff  to  be  a  cripple  for  life:  Collins 
V.  Council  Bluffs,  32  Iowa,  326;  7  Am. 
Rep.  200;  on  a  rehearing,  the  verdict 
was,   however,   reduced    to    $10,000; 
$15,695,  in  view  of  the  number  and 
severity  of  plaintiff's  injuries,  and  the 
pain,    deformity,   and   inability    con- 
sequent upon  them:  Schultz  v.  R.  R. 
Co.,  46  N.  Y.  Sup.  Ct.  211;  $19,000, 
plaintiff's  injuries  being  severe,  and 
her    sufferings   great,    and    it   being 

475;  Chicago  etc.  R.  B.  Co.  v.  McEit< 
trick,  78  111.  619. 


§1222 


NEQLIOENCE. 


2170 


§  1222.    Verdicts  Set  Aside  as  Excessive.— Where  tbo 

damages  given  by  the  jury  are  out  of  all  character  m 
compared  with  the  injury  received,  the  courts  will  set  the 
verdict  aside.*    And  the  appellate  court  assumes  jurisdic- 


probable  that  she  might  nover  fully 
recover,  and  that  her  life  might  bo 
materially  shortened:  Groves  v.  Roch- 
ester, 3'J  Hun,  5;  $25,000,  where  plain- 
tiflf,  formerly  a  healthy  man,  has  be- 
come an  "almost  total  wreck,  both 
physically  and  mentally":  Chicago 
etc.  11. 11.  Co.  V.  Holland,  18  111.  App. 
418;  $25,000  for  a  serious  injury  to 
the  legs,  causing  permanent  suffer- 
ing: Albert!  v.  R.  R.  Co.,  43  Hun, 
421;  ?:50,000,  where  the  plaintiff,  be- 
sides lesser  injuries,  received  a  con- 
cussion of  the  spine,  causing  chronic 
inflammation  of  the  membrances  en- 
veloping the  spinal  cord;  his  faculties 
had  already  becomo  impaired,  and 
paralysis  and  premature  death  prob- 
ably would  result:  Harrold  v.  R.  R. 
Co.,  24  Hun,  184. 

^  Chicago  etc.  R.  R.  Co.  v.  McKean, 
40  111.  218;  Chicago  etc.  R.  R.  Co.  v. 
Jackson,  55  111.  407,  the  court  saying: 
"  $18,000  is  so  large  a  sum  that  wo  re- 
gard it  excessive.  That  amount,  put 
at  interest  at  tho  highest  legal  rate, 
would  produce  annually  $1,800,  — 
more,  by  a  large  sum,  than  is  obtained 
by  the  most  skillful  mechanics  for 
their  labor,  while  appellee,  in  pursuit 
of  his  calling  as  a  brakeman,  could 
probably  not  have  received  more  than 
one  third  of  that  sum.  It  is  true  that 
appellee  has  received  a  grievous  in- 
jury, and  has  been  rendered  almost 
unfitted  for  business;  but  the  railroad 
company  should  not  be  required  to 
render  to  him  a  sum  which  would 
produce  a  greater  income  than  he 
could  have  earned  had   he  not  been 

injured But  we  can  see  that, 

after  deducting  physicians'  bills,  loss 
of  time,  and  other  expenses,  including 
counsel  fees,  the  sum  left  would,  at 
interest,  produce  a  sum  largely  above 
any  amount  he  could  have  expected  to 
earn  had  he  not  been  disabled.  This 
verdict  seems  to  have  been  the  result 
of  passion  or  prejudice,  and  not  of 
calm  and  dispassionate  reflection. 
The  finding  must  be  in  proportion  to 
the  injury  sustained;  and  whea  it  is 


greatly  excessive,  as  it  is  in  this  case, 
it  will  be  set  aside."    The  foUowiii" 
verdicts  have  been  set  aside  as  ex- 
cessive:   $1,525  for  the  sprain  of  an 
ankle:  Chicago  etc.  R.  R.  Co.  v.  lh\\n\ 
52  111.  451;  4  Am.  Rep.  COfi;  $2,5U0 
for  an  injury  to  the  leg  of  a  ydimif 
woman;  three  years  after  the  accident 
sho    had    not    fully    recovered,    yet 
walked  naturally  and  gracefully;  re- 
covery had  been  impeded  by  her  poor 
health  at  and  before  the  time;  tlic  leg, 
although  smaller  than  the  other,  was 
probably  not  permanently  injured;  she 
had  not  suffered  any  extreme  pain; 
and  the  accident  had  not  deprived  her 
of  any  business  or  ct  ling  by  which  to 
earn  money:  Chicag    etc.  R.  II.  Co.  v. 
Pauzant,  87  111.    125;    $3,000  for  au 
injury  to  a  servant  girl,  which  did  not 
prevent  her  from  working:  Decatur  i\ 
Fisher,  53  111.  407;  $4,000  for  a  broken 
leg,  the  court  reducing  it  to  $2,r)(X); 
Lombard  v.  R.  R.  Co.,  47  Iowa,  41)4; 
$4,500   for   the   fracture  of  an  aim; 
Chicago  etc.  R.  R.  Co.  v.  Hughes,  87 
111.  94;  $5,000  for  a  deformity  of  the 
right  hand:  Union  etc.  R.  R.  Co.  v. 
Hand,  7  Kan.  380;  $5,000  for  a  tem- 
porary loss  of  sight  in  one  eye:  Tiiiiiey 
V.  New  Jersey  etc.  Co.,  5Lans.  507;  \i 
Abb.  Pr.,  N.  S.,  1;  $5,000  for  au  in- 
jury causing  slight  lameness;  Chicago 
etc.  R.  R.  Co.  V.  McAra,  52  111.  2tii); 
$0,000  for  injuries  not  permanent,  re- 
ceived by  a  woman:  LimiTley  t\  R.  R, 
Co.,  48  N.  Y.  Sup.  Ct,  54'>;  :^(j.:-<».,  ;> 
the  loss  of  a  thumb  .^f         ;•:•'(!  .■■.r: 
Kansas  etc.  R.  R.  Co        ''     "v.;<4 
Kan.  472;  29  Kan.  ](>9;  44  .i,  >.  Koi), 
630;  $6,G00for  tho  fracfU'        tic  mm 
of  a  child  five  years  o!  ^      Irei'  will 
remain    permanently    disfigurtii,  the 
court  reducing  it  to  .$3,000:  Ryder  >:. 
New   York,  50  N.  Y.  Sup.  Cc.  '2'20; 
$9,250  for  the  concussion  of  the  .sjiinil 
cord,  producing  a  deceased  coii<lition 
of  the  nervous  system,  but  no  lacera- 
tion of  the  body  or  fracture  of  the 
bones,  and  at  the  time  of  bringing  the 
action  plaintiff  was  most  of  tho  time 
free  from  pain,  and  able  to  engage  in 


—Where  the 
character  as 
9  will  set  the 
Qies  jurisdic- 

it  is  in  this  case, 
The  followiii" 
set  aaido  as  ex- 
the  sprain  of  an 
I.  II.  Co.  V.  Dunn, 
[lep.  60f);  82,500 
»  leg  of  a  ycmiig 
ifter  the  acciilent 
recovereil,    yet 
d  gracefully;  re- 
eded by  her  poor 
;hetime;  the  leg, 
m  the  other,  was 
ntly  injured;  alie 
.y  extreme  pain; 
not  deprived  her 
ling  by  whioh  to 
etc.  R.  R.  Co.  V. 
>;    $3,000  for  au 
rl,  which  did  not 
'king:  Dccalur  i\ 
■,000  for  a  broken 
ing  it  to  $2,')00: 
X,  47  Iowa,  m-, 
;iiro   of  an  arm; 
0.  V.  Hughes,  87 
deformity  of  the 
tc.  R.  R.  Co.  V. 
5,000  for  a  tern- 
one  eye:  Tiiuiey 
,,5Lans.  507;  12 
^5,000  for  an  in- 
iineness;  Chieago 
\.ra,  52  111.  ^ij; 


2171  EVIDENCE— -PLEADING  AND   DAMAGES.  §  1222 

tion  frequently  to  reduce  a  verdict  which  it  thinks  too 

large.* 


business:  Sioux  City  etc.R.R. Co. w.Pin- 
layson,  10  Neb.  578;  49  Am.  Rep.  724; 
J10,000  for  a  chronic  inflammation  of 
the  knee-joint,  plaintiff's  powers  of 
locomotion  not  bein^  permanently  im- 
paired or  his  capacity  to  pursue  his 
trade  seriously  affected:  Jennings  v. 
Van  Schaick,    13  Daly,   7;    $10,000, 
where  the  plaintiff  was  confiued  to  his 
house    for  several   months  from  the 
injury,  which  caused  a  shortening  of 
tlie  leg  two  inches:  Chicago  etc.  R.  R. 
Co.  V.    Haviland,    12    111.   App.   6G1; 
JI4,800  for  the  breaking  of  his  leg  by 
a  brakeman:  Southwestern  R.  R.  Co. 
V.  Singleton,  66  Ga.  252;  $18,000  for 
the  loss  of  both  legs  by  a  brakeman: 
Chicago  etc.  R.  R.  Co.  v.  Jackson,  55 
111.  4'J7,  supra;  $20,000  for  the  loss  of 
a  foot,  the  court  reducing  it  to  $10,000; 
Kennou  v.  Gilmer,  6  Mont.  257;  51 
Am.  Rep.  45. 

'  Collins  V.  Council  Bluffs,  35 
Iowa,  432;  7  Am.  Rep.  200;  Rose 
V.  R.  R.  Co.,  39  Iowa,  246;  McKinley 
V.  K  R.  Co.,  44  Iowa,  314;  24  Am. 
Rep.  748;  Nashville  etc.  R.  R,  Co.  v. 
Smith,  G  Heisk.  174;  Benagamv,  Plas- 
san,  15  La.  Ann.  703;  Kavanaugh  v. 
Janesville,  24  Wis.  620;  Diblin  ». 
Murphy,  3  Sandf.  21,  the  court  say- 
ing: ' '  We  are  satisfied  that  the  verdict 
ought  to  have  been  considerably  less; 


and  the  amount  is  so  much  more  than 
it  should    have  been  as  to  indicate 
either  passion  or  prejudice  on  the  part 
of  the  jury.     It  is  a  case,  therefore, 
where  we  feel  compelled  to  interfere 
with  the  verdict,  and  to  set  it  aside  aa 
excessive,  unless  some  other  remedy 
may  be  adopted.    Then  what  is  proper 
to  be  done?    We  have  considered  it, 
and  find  no  objection  in  principle  to 
reducing  the  verdict  to  an  amount  such 
as,  if  the  jury  had  found  it  as  dam- 
ages,  we  would   not   interfere  with 
their  conclusion.     That  is,  in  effect, 
for  the  court  to  say  to  the  plaintiff: 
If  you  will  enter  a  remittitur,  so  as  to 
reduce  the  verdict  to  such  a  sum  as  we 
think  would  not  have  been  unreason- 
able if  it  had  been  found  by  the  jury, 
we  will  not  set  it  aside.     This  practice 
is  very  common  in  actions  upon  con- 
tract, where  the  party  has  recovered 
more  than  he  is  entitled  to.     The  only 
doubt  is,  whether  in  actions  of  tort 
the  court  can  adopt  the  same  practice. 
We  see  no  objection  to  it  in  principle, 
and  it  will  often  relieve  the  parties 
from  the  expense  and  delay  of  a  new 
trial."    Contra,  Gale  v.  R.  R.  Co.,  53 
How.  Pr.  391.    The  verdict  may  be 
mcreased  on  appeal:  Sullivan  v.  R.  R. 
Co.,  39  La.  Ann.  800;  4  Am.  St.  Rep. 
^o9. 


!9:  4J   .i-1.  Rep. 

iccj'         t'leunn 

oil,      .  hJei'  will 

disfigurLii,   the 

g3,000:  Ryder  v. 

'.  Sup.  Ct.  220; 

ion  of  the  sjiinil 

leased  condition 

I,  but  no  laeera- 

fracture  of  the 

}  of  bringing  the 

lost  of  the  time 

ible  to  engage  in 


TITLE   XV. 

SLANDER  AND  LIBEL. 


tic 
an 
ai 
frc 


217» 


TITLE    XV. 

SLANDER  AND  LIBEL. 


CHAPTER  LXIV. 

DEFAMATION  IN  GENERAL. 

Defamation  — When  defamatory  worda  actionable. 
Intent    immaterial  -  Party  presumed   to  intend   consequences - 
Mistake. 

Freedom  of  the  press  —  Censorship  abolished. 

Injunction  will  not  lie  to  restrain  publication  of  libel. 

Comment  and  criticism  on  public  matters. 

What  are  "public  matters." 

National  and  state  matters. 

Administration  of  justice. 

Local  government. 

Public  institutions. 

Ecclesiastical  matters. 

Literary  and  artistic  criticism. 

Other  public  matters. 

Publication. 

Who  liable-  All  parties  instrumental  in  publication  liable. 

Newspapers. 

Repetition  of  libel  —  Who  liable. 

Slander. 

Construction  of  defamatory  words. 

The  innuendo  —  The  colloquium. 

Certainty  as  to  charge  —  Proof. 

Certainty  as  to  person  defamed  — Who  may  sue. 

§  1223.  Defamation  — When  Defamatory  Words  Ac- 
tionable—Defamation is  a  false  publication  regarding 
another  to  the  injury  of  his  reputation.  Every  man  has 
a  right  to  his  good  name.  He  has  a  right  to  bo  protected 
from  defamation  as  much  as  from  assault  to  his  person^ 


§  1223. 
§  1224. 

§  1225. 
§  1220. 
§  1227. 
§  1228. 
§  1220. 
§  1230. 
§  1231. 
§  1232. 
§  1233. 
§  1234. 
§ 123j. 
§  1230. 
S 1237. 
§  1238. 
§  1239. 
§  1240. 
§1241. 
§  1242. 
§  1243. 
§  1244. 


81223 


BLANDER  AND   LIBEL. 


217C 


or  trespass  against  his  property.'  Honco  all  word^, 
whether  oral  or  written,  which  injure  the  reputation  (,f 
another  are  actionable.'*  "  The  injury  to  the  reputation  U 
the  gist  of  the  action,  and  wherever  that  is  clear,  there  is 
no  need  to  inquire  whether  there  is  any  injury  to  Uio 
pocket  as  well.  But  whore  it  is  by  no  means  clear  from 
the  words  themselves  that  they  must  have  injured  tlio 
plaintilf's  reputation,  there  the  court  requires  proof  of 
some  special  damage  to  show  that  as  a  matter  of  fact  tlio 
words  have  in  this  case  impaired  the  plaintilf's  good 
name."''  Proof  of  this  kind  is  rec^uired  more  iVequenlly  in 
actions  of  slander  than  of  libel.  Words  which  are  moroly 
uncivil,  words  of  idle  abuse,  are  no  ground  for  an  action,  iiii- 
loss  it  can  be  shown  that  in  fact  some  appreciable  damu^'o 
to  the  plaintiff  has  followed  from  their  use.  All  defamatory 
words,  therefore,  are  not  actionable.  Words  which  merely 
might  tend  to  produce  injury  to  the  reputation  of  anotlicr 
are  not  defamatory,  and  even  though  false  are  not  action, 
able,  unless  as  a  matter  of  fact  some  appreciable  injury 
has  followed  from  their  use.  On  the  other  hand,  words 
which  on  the  face  of  them  must  be  injurious  to  the  repu- 
tation of  the  person  to  whom  they  refer  are  clearly  de- 
famatory, and  if  false,  are  actionable,  without  proof  that 
any  particular  damage  has  followed  from  their  use.^ 

The  fact  that  the  words  have  injured  the  plaintiff's 
reputation  will  be  either  presumed,  or  must  bo  proved. 
The  fact  will  bo  presumed  in  four  cases:  1.  If  the  words, 
being  written  and  published,  or  printed  and  published,  are 
in  any  way  disparaging  to  the  plaintiff,  or  tend  to  bring 
him  into  ridicule  and  contempt;  2.  If  the  words,  being 
spoken,  charge  the  plaintiff  with  the  commission  of  some 
indictable  offense;  3.  If  the  words,  being  spoken,  impute 
to  the  plaintiff  a  contagious  disorder  tending  to  exclude 

*  "His  reputation  is  hia  property,        *  Terwilliger  v.  Wanda,   17  N.  Y. 

and  if    possible,  more  valuable  than  54;  72  Am.  Dec.  420. 
other  property  ":    Dixou  v,  Holden,        "  Odgera  on  Libel  and  Slander,  17. 
L.  R.  7  £<i'  '^^'^'  *  Odgers  on  Libel  and  Slander,  1. 


2i7G 


2177 


DEFAMATION   IN   GENERAL. 


§1224 


,11   words, 
itation  (-f 
u  tut  ion  is 
r,  thoro  U 
iry  to  till) 
;lour  from 
ijurod  (litj 
ri   proof  of 
)f  fact  (ho 
tilV's  ^o()(l 
;quoutly  in 
aro  mcioly 
action, uu- 
blo  daniii^o 
defamatory 
lich  merely 
of  another 
not  action- 
able injury 
land,  words 
to  the  ri'iHi- 
clearly  de- 
proof  that 
r  use* 

plaint  iif's 

bo  proved, 

the  wordri, 

iblished,  are 

(1  to  l)ring 

ords,  being 

on  of  some 

vcn,  impute 

to  exclude 

Lnds.  17  N.  Y. 

Lcl  Slander,  17. 
td  Slander,  1. 


hjni  from  society;  4.  If  tho  words,  being  spoken,  are 
spoken  of  tlio  pluintilT  in  the  way  of  his  calling'  or  oc- 
(iipiitiop,  or  disparage  him  in  any  public  office  \vhi(di  he 
may  be  holding.  In  these  cases  the  words  are  said  to  be 
actionable  /)cr«c,  because  it  is  presumed  that  they  must 
have  injured  the  plaintiff's  reputation.  But  in  all  oilier 
cases  of  spoken  words  the  fact  that  the  plaintiff's  reputa- 
tion was  injured  must  bo  proved  by  showing  their  in- 
jurious consequences  or  effect.  Such  evidence  is  called 
evidence  of  special  damage. 

The  action  of  slander  is  transitory,  and  may  bo  brought 
in  one  state  for  words  spoken  in  another.* 

§  1224.  Intent  Immaterial  —  Party  Pf esumed  to  In« 
tend  Consequences — Mistake.— The  intent  or  motive- 
with  which  the  words  were  used  is  as  a  rule  irrelevant.. 
If  the  defendant  has  injured  the  plaintiff's  reputation  he 
is  Hable,  though  ho  did  not  intend  that  his  words  should 
have  this  effect.  He  is  presumed  to  have  intended  the 
natural  consequence  of  his  acts,  and  it  is  no  defense 
(though  it  may  go  in  mitigation  of  damages)  that  he  had 
no  thought  of  injuring  the  plaintiff,  or  hoped  he  would 
not  bo  injured  by  the  publication.  Hence,  though  the 
complaint  generally  alleges  that  the  words  were  spoken 
or  published  falsely  and  maliciously,  malice  in  fact  need 
never  bo  proved  at  the  trial;  the  words  are  actionable,  if 
false  and  defamatory,  although  spoken  or  published  ac- 
cidentally or  inadvertently,  or  with  an  honest  belief  in 
their  truth,  unless  they  were  privileged.'    The  intent  is 


'  Offutt  V.  Earlywine,  4  Blackf.  460; 
32  Am.  Due.  40.  Where  the  plaintiff 
brought  at  one  time,  and  against  the 
saniu  defendants,  a  separate  action  in 
each  of  the  counties  of  the  state  for 
one  ami  tlie  same  libel,  which  was 
puhlLshuil  in  the  county  in  which  all 
the  parties  resided,  the  defendant's 
motiuu  tu  consolidate  the  actions  mt(t 
137 


one  was  granted:   Percy  v.  Seward,  6 
Abb.  Pr.  ^26. 

'  Odgers  on  Libel  and  Slander,  5.  See 
post,  sec.  1301,  Proof  of  Malice. 
Smart  v.  Blanchard,  42  N.  H.  137; 
Liokw.  Owen,  47  Cal.  252;  Wilson  v. 
Noonan,  35  Wis.  321  j  Cuiiis  ts  Maa< 
sey,  6  Gray,  26L 


§1225 


SLANDER   AND  LIBEL. 


2178 


inferred  from  the  fact  that  the  charge  is  false.*     It  is  no 
dofeiKso  that  a  publication  was   merely  "  in  jest."  ^    In 
an  English  case  the  plaintiff  told  a  laughable  story  against 
himself  in  company;  the  defendant  published  it  in  tlie 
newspaper  to  amuse  his  readers,  assuming  that  the  plain- 
tifl'  would  not  object.     The  plaintiff  recovered  damages.^ 
Drunkenness  oran  unaccepted  apology  is  not  a  defense.*  So 
mistake  is  no  defense.    If  a  man  deliver  by  mistake  a  paper 
out  of  his  study,  where  he  has  just  written  it,  he  will,  it 
seems,  be  liable  to  an  action,  if  the  paper  prove  libelous, 
although  he  never  intended  to  publish  that  paper,  but 
another  innocent  one.®     In  one  case  a  barrister,  editing  a 
book  on  the  law  of  attorneys,  referred  to  a   case,  In  re 
Blake,  reported  in  30  L.  J.  Q.  B.  32,  and  stated  that  Mr. 
Blake  was  struck  off  the  rolls  for  misconduct.     He  was 
in  fact  only  suspended  for  two  years,  as  appeared  from 
the  Law  Journal  report.     The  publishers  were  held  liable 
for  this  carelessness,  although  neither  they  nor  the  writer 
bore  Mr.  Blake  any  malice." 

Illustrations. — The  printers  of  a  newspaper,  by  a  mistake, 
placed  the  name  of  the  plaintiff's  firm  under  the  heading 
"  First  meetings  under  the  bankruptry  act  "  instead  of  under 
"  Dissolutions  of  partnership."  An  ample  apology  was  inserted 
in  the  next  issue;  no  damage  was  proved  to  have  followed  to 
the  plaintiff;  and  there  was  no  suggestion  of  any  malice.  In 
an  action  for  libel  against  the  proprietors  of  the  paper,  the  jury 
awarded  the  plaintiff  fifty  pounds  damages.  Held,  that  the  | 
publication  was  libelous:  Shepheard  v.  Whitaker,  L.  R.  10 1 
Com.  P.  502;  32L.  T.  402. 

§  1225.    Freedom  of  the  Press  —  Censorship  Abolished. 
—  Both  the  federal  and  the  state  constitutions  recognize  I 
and   maintain  the  right  of  freedom  of  speech.    By  the 


»  Holt  V.  Parsons,  23  Tex.  9;  76 
Am.  Dec.  49. 

^  Hutch  V.  Potter,  2  Gilm.  725;  43 
Am.  Dec.  88;  Hosley  v.  Brooks,  20111. 
115;  71  Am.  Dec.  252. 

2  Coi  ik  V.  Ward,  6  Bing.  409;  4  Moore 
&  P.  99. 


♦  Williams    v.   McManus,   38    La, 
Ann.  161;  58  Am.  Rep.  171. 

*  Note  to  Mayne  v.  r'ijtcher,  i 
4  Moody  &  R.  312;  R.  v.  Paine,  5 
Mod.  167. 

8  Blake  v.  Stevens,  4  Fost.  &  F.  232; 
11  L.  T.  643. 


2170 


DEFAMATION    IN    GENERAL. 


§1226 


constitutions  of  twenty-eight  states  every  man  is  given 
the  right  to  write,  speak,  and  publish  his  opinions  on  all 
subjects,  being  responsible  for  the  use  of  that  privilege.' 
Ill  the  constitutions  of  eighteen  states,  it  is  provided  that 
no  law  cLi'idging  or  restraining  the  freedom  of  the  press 
or  of  speech  shall  ever  be  passed.^  Eight  declare  that 
liberty  of  the  press  ought  to  bo  maintained,  and  that  no 
law  shall  abridge  that  right;'  In  the  United  States,  then, 
nil  persons  are  exempt  from  censorship;*  they  may  publish 
what  they  think  fit,  being  responsible  only  for  the  abuse 
of  that  right.' 


§  1226.  Injunction  will  not  Lie  to  Restrain  Publi- 
cation of  Libel.  —  An  injunction  will  not  be  granted  to 
prohibit  the  publication  or  republication  of  any  libel  or 
to  prevent  its  sale."    In  England  it  is  held  that  libel  or 


'  See  1  Stimaon's  Statute  Law,  12. 

2  Seo  1  Stimson's  Statute  Law,  12. 

'See  1  Stimson's  Statute  Law,  12. 

*  All  interesting  sketch  of  the  history 
of  the  censorship  of  the  printing-press 
in  England  is  given  by  Sir.  Oilgers  in 
hia  Digest  of  the  Law  of  Libel  and 
Slanaor,  10-12. 

^Story  on  the  Constitution,  1889; 
Cooley  on  Constitutional  Limitations, 
4'20.  "  The  liberty  of  the  press,"  says 
Lord  Mansfield,  in  R.  v.  Dean  of  St. 
Asapli,  3  Term  Rep.  431,  note,  "  cor 
sists  ill  printing  without  any  previous 
license,  subject  to  the  conse  juences  of 
law."  Lord  Ellenborough  says,  in  R. 
r,  Col.bett,  29  How.  St.  Tr.  49:  "  The 
hw  of  England  is  a  law  of  liberty, 
and  consistently  with  this  liberty,  we 
have  not  what  is  called  an  imprimatur; 
there  is  no  such  preliriinary  license 
necessary;  but  if  a  man  publish  a  pa- 
per, he  is  exposed  to  the  penal  conse- 
iiueiices.  as  he  is  in  every  other  act,  if 
it  be  iilo!,'al. "  Lord  Keiiyon  says,  in  R. 
r.  CuthtU, -27  How.  St.  Tr.  (i75:  "A 
man  nmy  publish  anything  which 
twtlvo  (if  his  countrymen  think  is  not 
Uamabli!." 

ninach  y.  Read,  2  Atk.  469;  Clark 
I.  Freeman,  11  Beav.  112;  Brandreth 
I.  Lauce,  8  Paige,  23;  34  Am.  Deo. 


3G8;  Maugher  v.  Dick,  55  How.  Pr. 
132;  Anon.,  2  Atk.  469;  Gee  n  Pritch- 
ard,  2  Swanst.  402,  426;  Martin  v. 
Wright,  6  Sim.  297;  Seelcy  v.  Fisher, 
11  Sim.  581;  Clark  v.  Freeman,  11 
Beav.  112;  Southey  v.  Sherwood,  2 
Mcr.  435;  Fisher  v.  ApoUiiiaris  Co., 
L.  R.  10  Ch.  297;  Prudential  Ins.  Co. 
V.  Knott,  L.  R.  10  Ch.  142  (overruling 
Di.Kon  V.  Holden,  L.  R.  7  Kq.  488, 
and  Springhead  Spinning  Co.  v.  Riley, 
L.  R.  6  Eq.  551);  Murray  v.  Benbow, 
Jacob,  474,  note;  Perceval  v.  Pliipps,  2 
Ves.  &  B.  19;  Mulkern  v.  Ward,  L, 
R.  13  Eq.  619;  Lawrence  n  Smith, 
Jacob,  471;  Singer  Mfg.  Co.  ?'.  Domes- 
tic Sewing  Machine  Cj.,  49  Ga.  70; 
15  Am.  Rep.  674;  Wetmorev.  Scovell, 
3  Edw.  Ch.  515;  N.  Y.  etc.  Guardian 
Soc.  V.  Roosevelt,  7  Daly,  188;  Life 
Ass'n  V.  Boogher,  3  Mo.  Ajip.  179, 
the  court  saying:  "In  Missouri, 
where  we  are  expressly  forbidden  by 
the  constitution  to  assume  the  power 
we  are  asked  by  the  plaintifl'  to  exer- 
cise, our  answer  cannot  be  doubtful. 
It  is  hardly  neces,sary  to  quote  the 
familiar  language  of  our  organic  law, 
which  has  always  declared  '  that  every 
person  may  freely  speak,  write,  or 
print  on  any  subject,  being  responsi- 
ble for  the  abuse  of  that  liberty.'   If 


§1226 


SLANDEH   AND  LIBEL. 


2180 


no  libel  is  a  question  for  a  jury;  but  after  they  have  once 
decided  it,  the  judge  may,  if  he  is  of  opinion  that  any 
repetition  of  the  libel  would  be  injurious  to  the  plaintilF's 
property,  grant  an  injunction  restraining  any  repetition 
thereof.*     And  in  a  recent  case  an  oral  slander  of  busi. 
ness   was   enjoined,  and   where  a   defendant,  who  had 
been  in  the  employ  of  the  plaintiffs,  had  been  making 
statements  to  the  plaintiffs'  customers  injurious  to  their 
business,  and  trying   to  interfere  with  their  customers 
making  payments  to  them,  an  interlocutory  injunction 
Avas  granted  restraining  him  from  doing  so.'^     But  it  has 
been  held  in  Massachusetts   that   the  jurisdiction  of  a 
court  of  equity  does  not  extend  to  cases  of  libel,  or  of 
slander,  or  of  false  representations  as  to  the  character  or 
quality  of  the  plaintiff's  property,  or  as  to  his  title  thereto, 
which    involve  no  breach  of  trust  or  of  contract.^    In 
Georgia  two  sewing-machine  companies  competed  for  a 
prize  offered   for    the  best  sewing-machine,  and  it  was 
awarded  to  one  of  them;  but  the  other  caused  to  be  pub- 
lished in  the  newspapers  false  statements  that  the  prize 
had  been  awarded  to  it.     It  was  held  that  an  injunction 
would  not  be  granted  to  restrain  such  publication.* 


it  be  said  that  the  right  to  speak, 
write,  or  print,  thus  secured  to  every 
one,  cannot  be  construed  to  mean  a 
license  to  wantonly  injure,  and  that 
by  the  jurisdiction  claimed  it  is  only 
suspended  until  it  can  be  determined 
judicially  whether  the  exercise  of  it 
in  the  particular  case  be  allowable,  our 
answer  is,  that  we  have  no  power  to 
suspend  that  right  for  a  moment  or 
for  any  purpose.  The  sovereign  power 
has  forbidden  any  instrumentality  of 
tlie  government  it  has  instituted  to 
limit  or  restrain  this  right,  except  by 
the  fear  of  the  penalty,  civil  or  crim- 
inal, which  may  wait  on  its  abuse. 
Tlie  general  assembly  can  pass  no  law 
abriilging  tlie  freedom  of  speech  or  of 
the  press;  it  can  only  punish  the  licen- 
tious abuse  of  that  freedom.  Courts 
of   justice  can   only  administer  the 


laws  of  the  state,  and  of  course  can  \ 
do  nothing  by  way  of  judicial  sen- 
tence which  the  general  assembly  liaa  | 
no  power  to  sanction. " 

*  Saxby  v.  Easterbrook,  L.  R,  3  C.  I 
P.  D.  339;  27  Week.  Rep.  ISS;  Tlior- 
ley's  Cattle  Food  Co.  v.  Massiun,  28 1 
Week.  Hep.  295;  41  L.  T.  5-1-2;  UCli, 
D.  763;  28  Week.  Rep.  9CG;  42  L,  T. 
851;  Thomas  v.  Williams,  U  Cli  D, 
864;  49  L.  J.  Ch.  605;  28  Week.  Rep, 
983;  43  L.  T.  91. 

^  Loog  V.  Bean,  41  L.  T..  N.  S.,  18));| 
20  Cent.  L.  J.  13. 

^  Boston  Diatite  Co.  v.  Florence  | 
Mfg.  Co.,  114  Mass.  69;  19  Am.  Uci),  i 
310. 

*  Singer  Mfg.  Co.  v.  Domestic  Sew-I 
ing  Machine  Co.,  49  Ga.  70;  15Am,j 
Rep.  674. 


2181 


DEFAMATION  IN   GENERAL. 


§1227 


L.T.,N.  S.,188; 


§  1227.    Comment  and  Criticism  on  Public  Matters.  — 

On  matters  of  public  interest  and  concern  every  one  has 
a  right  to  make  such  comments  and  criticisms  as  he 
pleases,  provided  he  does  so  fairly  and  with  an  honest 
purpose.*  On  everything  which  invites  public  attention 
every  one  of  the  public  has  a  right  to  express  his  opinion, 
favorable  or  unfavorable,  as  the  case  may  be.  And  there 
is  no  distinction  between  a  journalist  and  any  other  per- 
son in  this  regard.'^  But  it  is  essential  that  the  matter 
shall  be  a  "  public  "  one,  and  that  the  criticism  shall  be 
directed  to  the  acts  of  the  person,  and  not  to  the  indi- 
vidual himself.  And  dishonorable  motives  must  not  be 
imputed,  unless  on  good  grounds,  and  for  justifiable  ends. 
And  lastly,  the  critic  must  not  take  advantage  of  the  occa- 
sion to  gratify  his  own  private  malice.'  In  criticising  the 
conduct  of  a  public  officer,  the  publishers  of  a  newspaper 


iWasoa  V.  Walter,  L.  R.  4  Q.  B. 
83;  Canipbell  v.  Spottiswoode,  3  Best 
tS.  700.  A  false  and  injurious  pub- 
lication made  in  a  newspaper,  "for 
sensation  and  increase  of  circulation," 
ii  malicious:  Macleaa  v.  Scripps,  52 
Midi.  'J14. 

2  "It  is  not  and  cannot  be  claimed 
tliattlioio  is  anyprivilege  in  journalism 
wiiicii  would  excuse  a  newspaper  whe:i 
any  other  publication  of  libels  would 
not  be  excused.  Whatever  functions 
the  jourualist  performs  are  assumed 
and  laid  down  at  his  will,  and  per- 
iormcil  under  the  same  responsibility 
attaciiing  to  all  other  persons.  The 
peater  extent  of  circulation  makes  his 
Ws  more  damaging,  and  imposes 
iptcial  duties  as  to  care  to  prevent 
tk  risk  of  such  mischief,  proportioned 
to  tiie  peril.  But  whatever  may  be 
the  measure  of  damages,  there  is  no 
ttiffereuce  in  liability  to  suit ":  Camp- 
'  1,  C.  .1.,  in  Foster  v.  Scripps,  39 
Mich.  37ti;  33  Am.  Rep.  403;  Barnes 
r.  Campbell,  59  N.  H.  128;  47  Am. 
I  Reii.  m. 

"Campbell  v.  Spottiswoode,  3  Best 

Us.  TTti;  Banner  Pub.  Co.  v.  State, 

WLea.  17G;  57  Am.  Rep.  214;  Com. 

r,  Blandiug,  3  Pick.  304;  15  Am.  Dec. 

214;  iSnyder  v.  Fulton,  34  Md.  128;  6 


Am.  Rep.  314.  In  Campbell  v.  Spot- 
tiswoode, 3  Best  &  S.  776,  Cockburn, 
C  J.,  said:  "A  line  must  be  drawn 
between  criticism  upon  public  conduct 
and  the  imputation  of  motives  by 
which  that  conduct  may  be  supposed 
to  be  actuated.  One  man  has  no  riglit 
to  impute  to  another,  whose  conduct 
may  be  fairly  open  to  ridicule  or  dis- 
approbation, base,  sordid,  and  wicked 
motives,  unless  there  is  so  much  ground 
for  the  imputation  that  a  jury  shall 
find,  not  only  that  he  had  an  honest 
belief  in  the  truth  of  his  stateniente, 
but  that  his  belief  was  not  witiiout 

foundation I  think    the   fair 

position  in  which  the  law  may  be  set- 
tled is  this:  That  where  the  public 
conduct  of  a  public  man  is  open  to 
animadversion,  and  the  writer  who  is 
commenting  upon  it  makes  imputa- 
tions on  his  motives,  which  arise  fairly 
and  legitimately  out  of  his  conduct,  so 
that  a  jury  shall  say  that  the  criticism 
was  not  only  honest,  but  also  well 
founded,  an  action  is  not  maintain- 
able. But  it  is  not  because  a  public 
writer  fancies  that  the  conduct  of  a 
public  man  is  open  to  the  suspicion 
of  dishonesty,  he  is  therefore  justified 
in  assailing  his  character  as  dishon- 
est." 


§  122S 


SIJLN'DEB.  AND   LIBEL. 


21S2 


render  themselves  liable  to  an  action  for  false  and  ground- 
less  imputations  of  wicked  motives,  or  of  crime.'  It  is 
not  privileged  to  falsely  charge  a  candidate  for  a  public 
office  with  the  commission  of  a  crime,''  or  that  he  is  un- 
der  indictment  for  a  felony;' or  to  publish  of  a  member  of 
Congress,  "he  is  a  fawning  sycophant,  a  misrepresentativo 
in  Congress,  and  a  groveling  office-seeker;  he  has  aban- 
doned  his  post  in  Congress  in  pursuit  of  an  office."  * 

§  1228.  Whatare"PubIicMatters."— As  to  what  are 
"  public  matters,"  within  the  meaning  of  the  rules  laid 
down  in  the  last  section,  it  may  be  said  generally  that 
all  political  and  legal  and  ecclesiastical  matters  are  mat- 
ters of  public  interest  and  concern,  and  this  extends  to 
such  matters,  whether  national,  state,  or  local.^  So  the 
public  conduct  of  every  public  man  is  a  matter  of  public 
interest,"  and  so  is  that  of  any  individual  in  private 
station  who  puts  himself  before  the  public  for  any  pur- 
pose.' Therefore,  within  this  phrase  fall  all  affairs  of 
the  state  and  nation,  the  county,  the  city,  or  the  ward;  all 
public  institutions  of  every  kind;  all  officials  of  every 
kind;  all  candidates  for  public  office;  all  elections  to  pub- 
lie  office;  all  churches;  all  courts  and  other  tribunals;  all 
public  works,  books,  pictures,  works  of  art,  theaters,  con- 
certs,  and  public  performances  of  every  sort;  and  all  mat- 
though  unpleasant,  appendage  to  his 
otBce:  Bramwell,  B.,  in  Kellv  r. 
Sherlock,  L.  R.  1  Q.  B.  689.  As'saiJ 
by  Cockburn,  C.  J.,  in  Seymour  v. 
Butterworth,  3  Fost.  &  F.  37(),  tl.ose 
who  fill  a  public  position  must  not  be 
too  thin-skinned  in  reference  to  com- 
inents  made  upon  them.  It  would 
often  happen  that  observations  would 
be  made  upon  public  men  which  they 
knew  from  the  bottom  of  their  liearts 
were  undeserved  and  unjust;  yet  they 
must  bear  with  them,  and  si:binit  to 
be  misunderstood  for  a  time,  because 
all  knew  that  the  criticism  of  the 
press  was  the  best  security  for  the 
proper  discharge  of  public  duties. 
'  See  post,  §  1235. 


iNeeb  v.  Hope,  111  Pa.  St.  145; 
Aldrich  v.  Press  Printing  Co.,  9  Minn. 
133;  8G  Am.  Dec.  84. 

^  Bronson  v.  Bruce,  59  Mich.  467; 
60  Am.  Rep.  307. 

»  Jones  V.  Townshend,  21  Fla.  431; 
58  Am.  Rep.  676. 

*  Tliomas  v.  Croswell,  7  Johns.  264; 
6  Am.  Dec.  269. 

"  Purcell  V.  Sowler,  L.  R.  2  C.  P.  Div. 
218. 

*  A  clergyman  with  his  flock,  an 
admiral  with  his  fleet,  a  general  with 
his  army,  and  a  judge  with  his  jury, 
are  all  subjects  of  public  discussion. 
Whoever  fills  a  public  position  ren- 
ders himself  open  thereto.  He  must 
accept    an   attack   as    a   necessary, 


21S2 


2183 


DEFAMATION   IN   GENERAL. 


1229 


nd  ground- 
irae.'  It  is 
3r  a  public 
it  he  is  un- 
,  member  of 
preseiitativo 
e  has  abiin- 
ffice."" 

to  what  are 
e  ruled  laid 
nerally  that 
;rs  are  inat- 
1  extends  to 
;al.^  So  the 
ter  of  public 
I  in  private 
'or  any  pur- 
ill  affairs  of 
the  ward ;  all 
als  of  every 
,ions  to  pub- 
ribunals;  all 
heaters,  con- 
and  all  mat- 

ppendage  to  his 
i.,  in  Kelly  v. 
B.  689.     As  said 

in  Seymour  t'. 
&  F.  37(),  those 
aon  mutit  not  be 
jference  to  com- 
hem.  It  woulil 
lervationa  would 
men  which  they 
n  of  their  hearts 
unjust;  yet  they 
(1,  and  si.hmit  to 

a  time,  because 
jriticism  of  the 
security  for  the 
ablic  duties. 


ters  which,  even  for  a  short  time,  claim  the  attention  of 
the  people  and  the  public  press. 

§  1229.  National  and  State  Matters.  —  The  conduct  of 
all  public  servants,  the  policy  of  the  government,  our  re- 
lations with  foreign  countries,  all  suggestions  of  reforms 
ill  the  existing  laws,  all  bills  before  Congress  or  a  state 
legislature,  the  adjustment  and  collection  of  taxes,  and  all 
other  matters  which  touch  the  public  welfare,  are  clearly 
matters  of  public  interest,  which  come"within  the  preced- 
ing rule.*  Thus  within  this  phrase  have  been  held  to 
fall:  Presentations  of  petitions  to  the  legislative  power;'' 
evidence  taken  before  a  legislative  committee  or  commis- 
sion;' the  personal  character  and  fitness  for  public  office  of 
a  candidate;*  corrupt  practices  at  an  election;®  the  ap- 
pointment or  election  of  persons  to  public  offices.*'  The 
only  limitation  to  the  right  of  criticism  of  the  acts  or 
conduct  of  a  candidate  for  an  office  in  the  gift  of  the  peo- 
ple is,  that  the  criticism  be  bona  fide.  But  as  respects  his 
person,  there  is  no  such  large  privilege  of  criticism, 
though  he  be  such  candidate;  whatever  imputes  to  him  a 
crime  or  moral  delinquency  is  not  a  privileged  communi- 
cation, either  absolute  or  conditional,  but  is  per  se  action- 
able.^ Thus  a  publication  concerning  a  candidate  for  an 
elective  office  which  charges  that  he  bartered  a  public  im- 
provement in  which  his  constituency  wero  interested  for 
a  charter  of  a  bank  to  himself  and  his  associates,  and 


'  R.  V.  Dennie,  4  Yeates,  267;  2  Am. 
Dec.  4IV2. 

''  Dunne  i\  Anderson,  .3  Bing.  88; 
Wasou  r.  Walter,  L.  R.  4  Q.  B.  73. 

'Mulkern  v.  Ward,  L.  R.  13  Eq. 
622;  Medley  v.  Barlow,  4  Fost.  &  F. 
224. 

'  Express  Printing  Co.  v,  Copeland, 
64  Tex.  3.")4.  To  say  of  a  candidate 
for  Con^'ress  that  his  mind  was  weak, 
and  never  could  be  depended  upon,  ia 
not  actionable  wr  se.*  Mayrant  v. 
Richardson,  1  Nott  &  McC.  347;  9 
Am.  Dec.  707. 


5  Wilson  V.  Reed,  2  Fost.  &  F. 
149. 

*  Seymour  v.  Butterworth,  3  Fost.  & 
F.  372;  TurnbuU  v.  Bird,  2  Fost.  & 
F.  r)08;  Lewis  v.  Few,  5  Johns.  1; 
King  V.  Root,  4  Wend.  113;  21  Am. 
Dec.  102;  Hunt  v.  Bennett,  4  E.  D. 
Smith,  647;  19  N.  Y.  173;  Curtis 
V.  Mussey,  6  Gray,  261;  Ahlrich  v. 
Printing  Co.,  9  Minn.  133;  SO  Am. 
Dec.  84;  Mayrant  v.  Richardson,  1 
Nott  &  McC.  348;  9  Am.  Dec.  707. 

'  Sweeney  v.  Baker,  13  W.  Va.  158; 
31  Am.  Rep.  757. 


§1230 


SLAKDER  AND  LIBSL. 


2184 


that,  if  elected,  he  would  be  an  unfaithful  representative; 
that  he  would  by  criminal  indiflferenco  or  treachery 
retard  or  prevent  the  corytruction  of  such  improvement, 
in  order  to  accomplish  selfish,  sinister,  and  dishonest  pur- 
poses,— is  not  privileged.*  So  although  to  charge  a  candi- 
date for  a  popular  office  with  being  uneducated,  lazy,  idle, 
and  ignorant,  is  not  libelous,  nor  is  it  libelous  per  se  to 
charge  him  with  being  "  a  social  leper  "  who  should  be 
"  deodorized,"  it  is  otherwise  to  charge  him  with  being 
a  professsional  gambler,  bully,  thief,  and  whoremaster;'^ 
and  charges  against  the  private  character  of  a  person 
holding  an  elective  oflSce,  published  more  than  a  year 
before  the  occurrence  of  the  next  election,  are  not  prima 
facie  privileged,  though  he  had  not  disclaimed  his  inten- 
tion  to  be  a  candidate  for  re-election.' 

Illustrations.  — A,  during  a  political  campaign,  published  a 
letter,  with  the  purpose  of  proving  that  a  candidate  for  gover- 
nor had  procured  his  nomination  by  improper  practices.  D  and 
C  published  an  article  in  their  newspaper,  alluding  to  the  letter 
as  "that  remarkable  letter  of  A  giving  his  so-called  reasons 
for  falsely  asserting  that  Mr.  L.'s  nomination  was  secured  by 
corrupt  means."  Held,  that  the  defendants'  article  did  not 
impute  willful  mistateraent  of  a  fact  to  plaintifiF,  but  that  it 
amounted  to  no  more  than  the  assertion  that  plaintiff's  con- 
clusions in  said  letter  were  erroneous,  and  hence  was  not  libel- 
ous:  Walker  v.  Hawley,  56  Conn.  559. 

§  1230.  Administration  of  Justice.  —  The  administra- 
tion of  the  law,  the  verdicts  of  juries,  the  conduct  of 
suitors  and  their  witnesses,  are  all  matters  of  lawful  com- 
ment.* It  is  privileged  to  call  public  attention  to  the 
act  of  a  judicial  officer  in  ordering  a  person  into  confine- 
judge  or  jury;  nay,  further,  for  my- 
self I  will  say  that  the  judges  invite 
discussion  of  their  acts  in  the  athnin- 
istration  of  the  law,  and  it  is  a  relief 
to  them  to  see  error  pointed  out,  if  it 
is  committed;  yet,  whilst  they  invite 
the  freest  discussion,  it  is  not  open  to 
a  journalist  to  impute  corruption": 
Fitzgerald,  J.,  in  B.  v.  Sullivan,  11 
Cox  C.  C.  57. 


'  Powers  V.  Dubois,  17  Wend.  63. 

2  Sweeney  v.  Baker,  13  W.  Va.  158; 
31  Am.  Rep.  757. 

^  Commonwealth  v.  Wardwell,  136 
Mass.  164. 

*  "  Every  one  has  a  right  to  discuss 
fairly  and  bona  fide  the  sidministration 
of  justice  as  evidenced  at  this  trial. 
It  is  open  to  him  to  show  that  error 
was  committed  on  the  part  of  the 


2185 


DEFAMATION  IN   GENERAL.       §§  1231-1234 


meat  without  a  charge  against  him,  or  in  requiring  bail 
iu  an  amount  which,  considering  the  prisoner's  probable 
means  and  position  in  life,  he  is  unable  to  pay.*  But 
this  privilege  does  not  arise  until  the  trial  is  over.  Com- 
ment pending  the  trial  is  a  contempt,''^  though  a  simple 
daily  report  of  legal  proceedings  iu  a  lengthy  case  is 
not.'  And  fair  comment  is  allowable  on  the  evidence 
given  by  a  particular  witness  on  a  trial."  But  it  is  not  a 
"  fair  comment "  to  charge  that  a  prisoner,  though  ac- 
quitted,  was  really  guilty,^  or  that  a  particular  witness 
committed  perjury.® 

§  1231.  Local  Government.  —  The  management  of  local 
affairs  by  local  authorities,  as  town  or  city  councils,  or 
other  municipal  boards,  school  boards,  boards  of  health, 
of  police,  of  public  works,  are  matters  of  public,  though 
of  mere  local,  concern. 

§1232.  Publiclnstitutions.— The  working  of  all  public 

institutions,  such  as  colleges,  hospitals,  asylums,  homes, 
is  a  matter  of  public  interest,  especially  where  such  insti- 
tutions appeal  to  the  public  for  subscriptions,  or  are 
supported  by  taxation,  or  belong  to  the  state  or  national 
government. 

§1233.  Ecclesiastical  Matters.— In  England,  a 
bishop's  government  of  his  diocese,  a  rector's  of  his 
parish,  and  the  manner  in  which  worship  is  celebrated 
in  the  established  church,  are  matters  of  public  interest.' 

§  1234.  Literary  and  Artistic  Criticism.  —  Fair  and 
honest  criticism,  however  severe  in  its  terms,  on  any  pub- 


'  Miner  v.  Detroit  Post  and  Tribune 
Co.,  4!)  Midi.  358. 

» Daw  0.  Ely,  L.  R.  7  Eq.  49. 

'  Lewis  V.  Levy,  El.  B.  &  E.  637. 

*HedIey  v.  Barlow,  4  Fost.  &  F. 
221. 

'  Lewis  V.  Walter,  4  Barn.  &  Aid. 


605;  Risk  v.  Whitehurst,  18  L.  T.,  N. 

•Roberts  v.  Brown,  10  Bing.  519; 
Stile  V.  Nokes,  7  East,  49;^,  Littler  v. 
Thomson,  2  Beav.  129;  Felkin  v.  Her- 
bert, 33  L.  J.  Ch.  294. 

'  Odgera  on  Libel  and  Slander,  47, 


1235 


SLANDER  AND  LIBBL. 


2186 


lislied  book  is  privileged.'  So  the  criticism  of  all  public 
exhibitions,  theatrical  or  musical  performances,  public 
balls,  shows,  etc.,  is  privileged."  Fair  and  reasonable  com- 
ments, however  severe  in  terms,  may  be  published  in  a 
newspaper  concerning  any+hing  which  is  made  by  its 
owner  a  subject  of  public  exhibition,  and  are  privileged 
communications,  for  which  no  action  will  lie  without 
proof  of  actual  malice.'  So  to  criticise  a  painting  pub- 
licly  exhibited,  or  the  architecture  of  any  public  build- 
ing, however  strong  the  terms  of  censure  used  may  bo,  is 
privileged.*  But  the  private  character  of  the  author, 
artist,  or  exhibitor  is  not  public  property,  and  the  critic 
must  not  make  his  assault  on  the  work  a  pretext  for  a 
personal  attack,  nor  is  the  author,  artist,  or  exhibitor 
himself,  or  his  private  character,  open  to  ridicule.^  Aud 
the  privilege  extends  only  to  matters  of  opinion.  A3 
to  matters  of  fact  the  critic  is  liable  for  making  a  false 
charge." 

§  1235.  Other  Fablic  Matters. — Where  a  professional 
man  advertises  a  new  mode  of  treatment  or  medicine; 
where  a  manufacturer  or  dealer  advertises  his  wares ;  where 
a  man  publishes  in  the  newspaper,  or  in  any  other  way, 
criticisms  on  public  affairs  or  charges  against  individuals, 
— the  press  or  the  public  may  notice  such  matters,  and 
they  become  "  public  "  within  the  privilege  of  the  foregoing 


*  "A  man  who  publishes  a  book  chal- 
lenges criticism ' :  Strauss  v.  Francis, 
4  Foat.  &  F.  1114;  Soane  v.  Knight, 
Moody  &  M.  74;  Hibbs  v.  Wilkinson, 
1  Fost.  &  F.  (510;  Tabart  v.  Tipper,  1 
Camp.  351;  Cooper  v.  Stone,  24  Wend. 
442;  lleede  r.  Sweetzer,  6  Abb.  Pr., 
N.  S.,  9;  llyau  /-.  Wood,  4  Fost.  &  F. 
755.  See  article  on  "The  limits  of 
literary  aud  artistic  criticism,"  in 
Southern  Law  Review  for  September, 
1883. 

■•'  Dibdin  v.  Swan,  1  Esp.  28;  Green 
V.  Chapman,  5  Scott,  340;  Eastwood 
».  Holmes,    1  Fost.  &   F.,347;  Fry 


V.  Bennett,  3  Bosw.  209;  28  N.  Y. 
330. 

»  Gott  V.  Pulsifer,  122  Mass.  235;  23 
Am.  Rep.  322. 

*  Soane  v.  Knight,  Mees.  &  M.  "4; 
Thompson  v.  Shockell,  Mces.  &  M, 
187. 

*•  Thompson  v.  Schockell,  Mees.  & 
M.  187;  Soane  v.  Knight,  Mees.  &  M, 
74;  Strauss  v.  Francis,  4  Fost  &  F. 
1107;  Cooper  v.  Stone,  24  Wend. 
442;  Reede  v.  Sweetzer,  6  Abb.  Pr,, 
N.  S.,  9. 

«  Fryv.  Bennett,  3  Bosw.  209;  28  N. 
Y.330. 


2187 


DEFAMATION  IN  GENERAL. 


§  1235 


sections.*     So  wherever  a  man  calls  public  attention  to 
his  own  grievances  or  those  of  his  class,  whether  by  letters 
in  a  newspaper,  by  speeches  at  public  meetings*,  or  by  the 
publication  of  pamphlets,  he  must  expect  to  have  his 
assertions    challenged,  the   existence    of  his   grievances 
denied,  and  himself  ridiculed  and  denounced.'^     So  a  free 
criticism  of  the  charter  of  an  insurance  company,  or  of 
any  other  corporation  which  claims  the  confidence  of  the 
public  and  seeks  the  possession  of  its  funds,  is  to  be 
encouraged  rather  than  repressed,  as  a  means  of  public 
security.''     So  when  a  man  comes  prominently  forward 
in  any  way,  and  acquires  for  a  time  a  quasi  public  posi- 
tion, he  cannot  escape  the  necessary  consequence  of  his 
prominence.*     But  where  the  defendant,  in  answering  a 
letter  which  the  plaintiff  has  sent  to  the  paper,  does  not 
confine  himself  to  rebutting   the   plaintifi^'s  assertions, 
but  retorts  upon  the  plaintiff  by  inquiring  into  his  ante- 
cedents and  indulging  in  other  uncalled  for  personalities, 
he  will  be  held  liable.*     In  discussing  the  subject  of  a 
scheme  or  plan  for  making  a  railroad  by  the  consolidation 
of  certain  short  lines,  and  to  obtain  control  of  a  certain 
railroad  company  by  electing  directors  favorable  to  the 
scheme,  a  public  speaker  or  writer  has  the  qualified  privi- 
lege which    attaches  to  public  affairs.     The   distinction 
between  the  public  and  private  affairs  of  a  railroad  is  this: 
When  a  railroad  is  to  be  built,  or  a  company  to  be  char- 
tered, the  question  whether  it  shall  be  authorized  is  a 
public  one;  but  when  the  company  is  organized  and  the 


Josw.209;28N. 


'  Oclgers  on  Libel  and  Slander,  50; 
Hunter  v.  Sharpe,  4  Fost.  &  F.  983; 
Paris  V.  Levy,  9  Com.  B.,  N.  S.,  342; 
Bigney  I'.Vau  Benthuysen,  3GLa.  Ann. 
38;  Com.  v.  Batchelder,  Thach.  C.  C. 
191. 

■'  Odger  V.  Mortimer,  28  L.  T.  472; 
Kcenig  v.  Ritchie,  3  Fost.  &  F.  413; 
R.  r.  Veley,  4  Fost.  &  F.  1117;  Hibbs 
V.  Wilkinson,  1  Fost.  &  F.  608;  O'Don- 


oghue  V.  Hussey,  5  Ir.  Rep.  C.  L.  124; 
Dwyer  v.  Eamonde,  2  L.  Rep.  Ir. 
243;  Davis  v.  Duncan,  L.  R.  9  Com. 
P.  396. 

'  HahnemannianL.  Ins.  Co.  v.  Beebe, 
48  111.  87;  95  Am.  Dec.  519. 

*  Odgers    on    Libel    and    Slander, 
51. 

*  Murphy  v.  Halpin,  8  Ir.  Rep.  C.  L. 
127. 


§  1236 


SLANDER   AND   LIBEL. 


21S8 


stock  issued,  anything  which  merely  affects  the  value  of 
the  stock  is  2)rivatc.' 

But  private  persons  cannot  be  the  subject  of  ill-naturod 
remarks  in  the  public  press,  where  they  have  done  nothing 
to  expose  themselves  to  public  censure.''  The  trustee  of  u 
mining  coriwration  is  not  such  a  public  officer  as  to  render 
the  incumbent  amenable  to  criticism  thr  ugh  newspapers, 
as  in  case  of  persons  filling  public  offices  of  trust  and 
confidence,  in  the  proper  administration  of  which  the 
community  has  an  interest.*  Nor  is  a  city  physiciau, 
appointed  by  the  city  council,  and  not  elected  by  tlio 
people.* 

Illustration. —  The  plaintiff  held  himself  out  as  teacher  of 
stenography,  etc.,  and  sought  to  attract  pupils  to  his  place  by 
signs  and  advertisements.  Held,  that  he  thus  assumed  a  quad 
public  character,  and  that  a  newspaper  report  of  an  interview 
with  him  concerning  his  business  must  beehown  to  be  malicious 
in  fact  before  it  would  be  libelous:  Press  Co.  v.  Stewart,  119  Pa. 
St.  584. 

§  1236.  Publication.  —  Defamatory  words  are  not  ac- 
tionable until  they  are  published,  and  by  publication 
is  meant  the  putting  of  the  slander  before  one  or  more 
persons  other  than  the  plaintiff.  To  slander  a  person  to 
his  face  is  not  actionable,  unless  some  one  overhears  it; 
nor  is  it  to  send  an  inclosed  letter  containing  defamatory 
matter  to  the  plaintiff;**  nor  is  it  a  publication  to  speak 


'  Crane  V.  Waters,  U.  S.  C.  C.  Mass., 
1882;  and  see  Hahneinannian  L.  Ins. 
Co.  V.  Beebe,  48  111.  87;  95  Am.  Dec. 
619. 

•'  See  anf.e,  §  1227;  O'Connor  v.  Sill, 
60  Mich.  175. 

»  Wilson  V.  Fitch,  41  Cal.  363. 

*  Foster  v.  Scripps,  39  Mich.  376; 
33  Am.  Rep.  403,  the  court  saying: 
"  Where  a  person  occupies  an  office 
like  that  of  a  city  or  district  physician, 
not  elected  by  tlie  public,  but  appoint- 
ed by  the  council,  we  have  found  no 
authority,  and  we  think  there  is  no 
reason,  for  holding  any  libel  privileged 
except  a  bona,  fide  representation  made 
without    malice   to    the   proper    au- 


thority,   complaining    on    reasonaljle 
grounds." 

^Cooley  on  Torts,  193;  Lyle  c. 
Clason,  1  Caines,  581 ;  Spaits  v.  Pouiul- 
stone,  87  Ind.  522;  44  Am.  Kep, 
773;  Mcintosh  v.  Matherly,  9  B.  Moii. 
119;  Broderick  v.  James,  3  Daly,  4>S1; 
Desmond  v.  Brown,  33  Iowa,  U. 
A  liter  where  one  is  prosecuted  crimi- 
nally, and  not  sued.  In  State  «.  Avtry, 
7  Conn.  266,  18  Am.  Dec.  104,  a 
proprietor  of  a  newspaper  cannot  be 
found  to  have  "  published '"  a  libel, 
unless  it  is  proved  to  have  been  read 
as  well  as  printed  and  sold:  Pruscott 
V.  Touaey,  50  N.  Y.  Sup.  Ct.  12. 


2189 


DEFAMATION   IN   GENERAL. 


§  1236 


on    reasoiui 


them  to  tlio  person  defamed,  oven  though  the  place  is  a 
public  one,  if  no  other  person  hears  them.'  But  to  con- 
stitute pul)lication,  the  libel  need  not  bo  made  known  to 
tlio  public  generally.  It  is  enough  if  it  be  made  known 
to  a  single  third  person.''  It  is  no  publication  of  a  slan- 
der to  speak  it  in  a  foreign  language  which  no  one  pres- 
ent understands.'  But  this  rulo  does  not  apply  to  a  libel 
printed  in  a  foreign  language.*  The  moral  or  intellectual 
character  of  the  person  in  whose  hearing  words  are 
spoken  is  immateri>»!.'' 

And  the  publication  must  be  made  by  the  defendant. 
If  the  party  to  whom  the  slanderous  words  are  spoken  or 
the  written  I'.oel  is  sent,  being  the  one  defamed,  gives  it 
to  the  world,  the  defendant  is  not  responsible."  But  the 
words  are  actionable,  although  spoken,  when  no  one  else 
is  present,  to  one  who  knows  them  to  be  false,  and  who 
docs  not  repeat  them  until  after  action  brought,'  and  an 
injunction  of  secrecy  by  the  defendant  to  tlie  witness  is  no 
defense.* 

To  have  a  libelous  writing  in  one's  possession  is  no 
publication;"  neither  is  it  to  post  up  a  libelous  placard,  if 
it  is  taken  down  before  any  one  sees  it.'"  A  defamatory 
writing  is  no  libel  so  long  as  it  remains  in  the  possession 
of  the  composer,  and  is  seen  by  no  one  else;  but  if  he  keeps 
such  a  paper  in  his  possession,  he  must,  at  his  peril,  see 
that  it  docs  not  fall  into  the  hands  of  others;  if  it  does,  the 
publication  is  in  law  attributable  to  him  as  the  party  who 
originated  the  wrong,  and  was  the  means  of  its  becoming 
injurious."     It  is  a  publication  to  deliver  it  to  a  person 

«Fonville».  McNease,  Dud.  (S.  C.) 
30.S;  31  Am.  Dec.  55G. 

'  Marble  v.  Chapiii,  132  ^lass.  225. 

8  McGowan  v.  Manifee,  7  T.  B.  Mon. 
314;  18  Am.  Dec.  178. 

*  Odgers  on  Libel  and  Slander,  152. 

'"  Odgers  on  Libel  and  Slander,  152. 

•'Cooley  on  Torta,  281.  But  Mr. 
Odgers  says  (Slander  and  Libel,  152): 
"  It  I  compose  or  copy  a  libel,  and 
keep  the  manuscript  iu  my  study,  m> 


'  iSheffill  V.  Van  Deusen,  13  Gray, 
304;  74  Am.  Dec.  632. 

''  Adams  v.  Lawson,  17  Gratt.  250; 
94  Am.  Dec.  455. 

'  Krene  v.  Ruff,  7  Iowa,  482. 

*  Palmer  v.  Harris,  CO  Pa.  St.  156; 
100  Am.  Dec.  557;  Mielonz  v.  Quas- 
dorf,  C8  Iowa,  726;  K.  v.  H.,  20  Wis. 
239;  91  Am.  Dec.  397. 

"  Shetlill  V.  VauDeusen,15  Gray,  485; 
77  Am.  Dec.  377. 


1236 


SLANDER   AND   LIBEL. 


2190 


who  would  necessarily  read  it,  even  though  it  is  not  proved 
that  in  the  purticiilur  caso  ho  did  read  it,  as  delivering  a 
new.spapor  to  a  revenue  commissioner  to  stamp  it,'  or  a 
manuscript  to  a  printer,'*  or  to  send  a  libel  by  telegraph,' 
or  by  postal  card.*  Where,  however,  though  a  third  per- 
son may  have  had  an  opportunity  of  reading  the  libol,  if 
he  actually  did  not,  it  is  no  publication.*  It  is  no  publi- 
cation  by  one  who  picks  up  and  delivers  a  sealed  letter, 
the  contents  of  which  are  unknown  to  him."  80  where  a 
person  wrote  a  letter  and  gave  it  to  another  to  deliver, 
folded,  but  not  sealed,  and  tho  messenger  delivered  it  to 
the  plaintiff  without  reading  it,  it  was  held  no  publica- 
tion.^ A  communication  of  a  slander  on  a  man  to  his 
wifo,^  or  to  any  member  of  his  family,"  is  a  publication. 
But  a  communication  by  a  husband  to  his  wife  is  not.'^' 
It  is  a  publication  to  give  it  to  the  agent  of  tho  plaintiff." 
As  soon  as  the  manuscript  of  a  libel  has  passed  out 
of  the  defendant's  possession  and  control,  it  is  published 
as  to  him.  Thus  a  letter  is  published  as  soon  as  posted, 
and  in  the  place  where  it  is  posted,  if  it  is  ever  opened 


tending  to  show  it  to  no  one,  and  it  is 
stolon  by  a  biirj,'lar,  and  published  by 
hiin,  it  i^  submitted  that  there  is  no 
publication  by  ine,  either  in  civil  or 
criminal  proceedings.  But  it  would 
be  a  puiilication  by  me  if  through  any 
default  of  mine  it  got  abroad,  whetlier 
throiigh  my  negligence  or  folly  ";  cit- 
ing \Vt'ir  r.  Jlnss,  G  Ala.  811,  which 
seems  to  hold  that  a  publication  v.i' "i- 
out  the  fiuthor's  consent  is  no  pitbliird- 
tionas  to  iiiin. 

'  R.  r.  Amphlit,  4  Barn.  &  C.  35. 

*  Baldwin  v.  Elphinston,  2  W. 
Blacli.  10H7;  Trumbull  v.  Gibbons,  3 
N.  Y.  City  Hall  Roc.  97. 

»  Whitli.  1 1  r.  R.  R.  Co.,  El.  B.  & 
E.  115;  Williamson  r.  Freer,  L.  R.  9 
Com.  P.  393. 

*  Robinson  v.  Jones,  4  L.  R.  Ir.  391. 

*  Odgors  on  Libel  and  Slander,  153. 
8  Fonville  v.  McNease,  Dud.  (S.  C.) 

303;  31  Am.  Dec.  5aG. 
'  Clutterbuck  v.  Chaffers,  1  Stark. 


471;  Day  v.  Bream,  3  Moody  &  R, 
54. 

*  Wenman  v.  Ash,  13  Com.  B.  836. 

»  Miller  v.  Johnson,  70  111.  59. 

^'^  Seslcr  V.  Montgomery,  78  Cal. 
486.  "Tho  question  seems  never 
to  have  arisen  in  England,  prob- 
ably because  in  every  such  case  there 
has  been  an  immediate  and  undoubted 
publication  of  tho  siiino  slander,  or  an 
exaggerated  version  thoreof,  l)y  the 
wife  to  some  third  'person,  for  wliich 
the  husband  would  ))o  ocjually  answer- 
able in  damages,  and  wliieh  would  be 
easier  to  prove.  In  America  tliere  is 
a  dictum  that  the  delivery  of  a  libel 
by  the  author  to  his  wife  in  confiilonce 
is  privileged:  Trumbull  v.  Giljbons,  3 
City  Hall  Rec.  97";  Odgors  on  Libel 
and  Slander,  153;  State  v.  Slioeiiiai;er, 
101  N.  C.  070;  and  see  Wcuidiak  v. 
Morgan  L.  R.,  20  Q.  B.  Div.  035. 

11  Brunswick  v.  Uarmer,  14  Q.  B, 
185. 


2101 


DEFAMATION   IN   GENERAL. 


1236 


1  Moody  &  R. 


aiiywliore  by  any  third  person/  Tlio  publication  of  a 
libol  in  sullicicntly  proved  where  it  appoiir.s  that  a  letter 
ill  tho  handwriting  of  the  defendant,  containing  the  libel, 
was  found  in  the  house  of  a  neighbor  of  tho  person 
lihcled,  ond  by  such  neij^libor  and  a  third  person  opened 
and  read."  A  letter  stating  that  the  writer  had  heard  of 
a  slanderous  report  is  admissible  in  evidence  to  prove 
the  circulation  of  tho  report,  and  may  bo  read  for  that 
purpose,  the  handwriting  of  tho  person  being  proved; 
but  it  is  not  admissible  to  prove  that  tho  defendant  had 
propagated  the  report.'  Evidence  that  a  newspaper  came 
from  the  defendant's  office,  and  was  one  copy  of  an  edition 
of  the  same  date,  is  proof  of  publication.'  So  distribut- 
ing newspapers  containing  libelous  matter,  and  receiving 
money  for  them  by  an  agent,  is  sufficient  evidence  of 
publication." 

Where  tho  only  publication  is  one  brought  about  by 
the  plaintiff's  own  act,  it  has  been  held  that  this  is  not 
suflicient  to  give  the  right  of  action,  on  tho  principle 
of  the  maxim,  Volenti  non  Jit  injuria.  Damages  cannot  bo 
recovered  for  the  repetition  of  slanderous  words  spoken 
by  another,  whether  true  or  false,  when  such  words  were 
repeated  by  the  defendant  at  the  request  of  the  plaixitiff.® 


1  Ward  V.  Smith,  6  Bing.  749;  Clegg 
r.  Laffer,  .3  Moore  &  S.  7*27;  Warren  r. 
Warnm,  1  Croiiip.  M.  &  R.  250;  Ship- 
ley r.  Todhunter,  7  Car.  &  P.  G80. 

^S\viIldlo  V.  state,  2  Yerg.  581;  24 
Am.  Dec.  515. 

=•  Scliwartz  j;.  Thomas,  2  Wash.  167; 
1  Am.  Dec.  479. 

*  State  V.  Jeandcll,  5  Harr.  (Del.) 
475. 

''  Respublica  v.  Davis,  3  Yeates, 
St.  128;  2  Am.  Deo.  366. 

«Haynes  v.  Leland,  29  Me.  223; 
Sutton  V.  Smith,  13  Mo.  120;  King  v. 
Waring,  5  E^^l).  15;  Smith  v.  Wood,  3 
Canip.  3-J3;  Warr  v.  Jolly.  6  Car.  &  P. 
497;  Wcatherston  v.  Hawkins,  I  Term 
Rep.  1 10;  Hopwoodv.  Thorn,  8  Com.  B. 
293;  Fouvillev.McNease,  Dud.  (S.  C.) 
303;  31  Am.  Deo.  656;  Nott  v.  Stod- 


dard, 38  Vt.  25;  88  Am.  Dec.  633; 
Heller  v.  Howard,  1 1  111.  App.  554. 
Contra,  Duke  of  Brunswick  v.  Harm- 
ner,  14  Q.  B.  185;  which  holds  that 
where  tho  words  have  bean  previously 
uttered,  suit  may  bo  brought  on  a  rep- 
etition sought  by  plaintiff.  And  in 
Griffiths  V.  Lewis,  14  Jur.  Q.  B.  197, 
Lord  Denman,  C.  J.,  said:  "Injurious 
words  having  been  uttered  by  the  de- 
fendant respectin'^  tho  plaintitf,  the 
plaintiff  was  bound  to  make  inquiry  on 
the  subject.  When  she  did  so,  instead 
of  any  satisfaction  from  the  defendant, 
she  gets  only  a  repetition  of  the 
slander.  Tho  real  question  comes  to 
this.  Does  tlie  utteraiico  of  slander 
once  give  the  privilege  to  the  slanderer 
to  utter  it  again  whenever  ho  is  asked 
for  aa  explaaatioa  ?    It  is  the  coastaut 


§1236 


SLANDER   AND   LIBIJL. 


2192 


The  allegations  of  the  answer  that  the  matters  contained 
in  the  publication  are  true  are  not  admissible  on  plain- 
tiff's behalf  as  a  republication.*  The  testimony  given 
by  a  witness  on  a  trial,  in  which  he  acknowledged  the 
uttering  of  certain  words  alleged  to  be  slanderous,  cannot 
be  proved  as  an  admission  in  a  subsequent  action  for 
slander  brought  against  him.''  Where  a  letter  containing 
a  libel  is  sent  sealed,  and  the  writer  subsequently  states 
in  the  presence  of  witnesses  that  he  had  got  a  certain 
person  to  write  the  letter  for  him;  that  he  had  signed  his 
own  name  to  it  and  kept  a  copy;  and  also  states  what 
the  contents  of  the  letter  were,  but  without  producing 
it  or  a  copy  of  it,  —  this  is  a  sufficient  publication.'  Proof 
that  the  words  were  spoken  to  plaintiff  or  in  his  presence 
need  not  bo  made;  it  suffi.ces  to  showtliat  they  were  spoken 
to  a  different  person.* 

Illustrations.  —  A,  by  mistake,  directed  and  posted  a  libel 
on  B  to  B's  employer,  instead  of  to  B.  Held,  a  publication:  Fox 
V.  Broderick,  14  Ir.  C.  L.  Rep.  453.  A  wrote  a  libelous  letter  to 
B,  but  showed  it  to  C  before  posting  it.  Held,  a  publication: 
Snyder  v.  Andrews,  6  Barb.  43;  McCombs  v.  Tuttle,  5  Blackf. 
431.  The  defendant  knew  that  the  plaintiff's  letters  were 
always  opened  by  his  clerk  in  the  morning,  and  sent  a  libelous 
letter  addressed  to  the  plaintiflF,  which  wad  opened  and  road  by 
the  plaintiff's  clerk  lawfully  and  in  the  usual  course  of  busi- 
ness. Held,  a  publication  by  the  defendant  to  the  plaintiff's 
clerk:  Delacroix  v.  Thevenot,  2  Stark.  63.    An  association  ap- 


course,  when  a  person  hears  that  he 
has  been  calumniated,  to  go  with  a 
witness  to  the  party  who  he  is  in- 
formed has  uttered  the  injurious 
worils,  and  say,  '  Do  you  mean,  in  the 
presence  of  witnesses,  to  persist  in 
the  charge  you  have  made  ? '  And 
it  is  never  wise  to  bring  an  action  for 
slander  unless  some  such  course  has 
been  taken.  But  it  never  has  been 
supposed  that  the  persisting  in  and 
repeating  the  calumny,  in  answer 
to  such  a  question,  which  is  an  aggra- 
vation of  the  slander,  can  be  a 
privileged  communication;  and  in 
none  of  the  cases  cited  has  it  ever 
been  so  decided."    The  testimony  of 


ministers  who  in  their  ministerial 
office  have  drawn  from  defendant 
statements  of  an  ancient  transaction, 
which  is  the  ground  of  suit,  is  not 
admissible  to  show  publication  of  the 
slander:  Vickers  v.  Stoneman,  Mich. 
1889.  A  slander,  once  barred,  cannot 
be  revived  by  an  admission  that  it  had 
formerly  been  made,  and  malice  can- 
not be  attached  to  such  admission: 
Vickers  v.  Stoneman,  Mich.  18SS). 

1  Young  V.  Kuhn,  71  Tex.  Gto. 

»  Osborn  v.  Forshee,  22  Mich.  209. 

'  Adams  v.  Lawson,  17  Gratt.  230; 
94  Am.  Dec.  455. 

*  Ware  r.'Cartledge,  24Ala.  622;  60 
Am.  Dec.  489. 


2192 


2193 


DEFAMATION  IN  GENERAL. 


§  1237 


contained 
on  plain- 
my  given 
edged  the 
us,  cannot 
action   for 
containing 
ntly  states 
I  a  certain 
signed  his 
states  what 
producing 
)n.'     Proof 
is  presence 
'ere  spoken 


)Bted  a  libel 

ication:  Fox 

ious  letter  to 

1  publication: 

le,  5  Blackf. 

letters  were 

nt  a  libelous 

and  read  by 

irse  of  busi" 

le  plaintiff's 

sociation  ap- 

eir  ministerial 
oin  defjiulant 
nt  transaction, 
of  suit,  is  not 
ill  cation  (it  the 
onemaii,  Mich. 

barred,  caunot 
jsion  that  it  had 
ind  malice  can- 

uch  admission: 
tfich.  1889. 

Tex.  G45. 

22  Mich.  209. 

17  Gratt.  250; 

24Ala.  622;  60 


pointed  a  committee  to  investigate  a  bill  presented  by  a  mem- 
ber, and  the  committee,  without  authority,  made  a  libelous 
rupott  in  print  at  a  regular  meeting,  by  placing  on  the  secre- 
tary's desk  copies  thereof,  which  were  then  freely  taken  from 
the  desk  by  the  members  present.  The  association  then  voted 
to  hold  a  special  meeting  for  action  on  the  report,  at  which 
meeting  a  vote  was  passed  to  adopt  it.  Held,  that  there  was 
nu  publication  of  the  libel  by  the  association:  Senaacour  v. 
Sorlctc  La  Prevoyance,  146  Mass.  616.  A  witness  swore  that  ho 
was  a  printer,  and  had  been  in  the  office  of  the  defendant, 
where  a  certain  paper  was  printed,  and  he  saw  it  printed  theio, 
and  the  paper  produced  by  the  plaintiff  was,  he  believed, 
printed  with  the  types  used  in  the  defendant's  office.  Ilddy 
prima  facie  evidence  of  the  publication  by  the  defendant: 
Snuthwick  V.  Stevens,  10  Johns.  443.  The  libel  was  pub- 
lislied  in  a  news,japer  printed  in  another  state,  but  which 
usually  circulated  in  a  particular  county  in  Massachusetts, 
and  the  number  containing  the  libel  was  actually  received  and 
circulated  in  the  given  county.  Held,  conclu.sive  evidence  of 
a  i)ubli cation  within  the  county:  Commonwealth  v.  Blandlngy 
3  Pick.  304;  15  Am.  Dec.  214.  The  entry  of  the  resolution  of 
excommunication  from  membership  in  a  church  on  the  minute- 
book  of  the  session,  and  the  exhibition  of  it  to  the  members  for 
their  signatures,  held,  not  a  publication:  Landis  v.  Campbell,. 
(9  Mo.  433;  49  Am.  Rep.  239.  Pending  prosecution  of  a 
criminal  charge  against  A,  defendant  wrote  to  A's  father, 
stating  that  he  was  reliably  informed  that  the  prosecuting  at- 
torney had  been  bribed  to  release  A,  on  consideration  of  the 
father  employing  him  on  a  contingent  fee  in  a  suit  against  de- 
fendant. Held,  a  sufficient  publication:  Young  v.  Clegg,  93 
Ind.  371.  Within  six  months  before  suit  brought,  the  defend- 
ant said,  concerning  the  words  alleged  to  be  actionable,  but 
which  were  barred  by  the  statute,  "  I  never  denied  what  I 
!  ive  said,  and  I  will  stand  up  to  it."  Held,  not  a  repetition  of 
what  ho  had  previously  said,  and  that  an  action  could  not  be 
sustained  thereon:  Fox  v.  Wilson,  3  Jones,  485.  The  plain- 
tifl',  after  receiving  a  libelous  letter  from  the  defendant,  sent 
for  a  friend  of  his  and  also  for  the  defendant;  he  then  repeated 
the  contc!nts  of  the  letter  in  their  presence,  and  asked  the  de- 
fendant if  he  wrote  that  letter;  the  defendant,  in  the  presence 
nf  the  plaintiff's  friend,  admitted  that  he  had  \vritten  it.  Held, 
no  publication  by  the  defendant  to  the  plaintiff's  friend:  Fon- 
nllc  V.  McNease,  Dud.  (S.  C.)  303;  31  Am.  Dec.  556. 


§  1237.    Who  Liable  — All   Parties    Instrumental  in 
I  Publishing  Liable. —  All  persons  instrumental  in  any  way 


138 


§  1237 


SLANDER  AND   LIBEL. 


2194 


in  having  the  defamatory  matter  published  are  jointly 
and   severally  responsible.*     It   is  no  defense   that   the 
party  sued  did  not  compose  it,  if  he  published   it.^    A 
master  or  principal  is  liable  for  the  defamatory  words  of 
his  servant  or  agent,  if  they  are  spoken  or  published  with 
his  authority  or  consent,  express  or  implied; '  or  if,  though 
not   so   authorized,  they  are   subsequently  ratified.*    A 
person  who  requests  or  commands  another  to  publish  a 
libel  is  responsible  as  though  he   published  it  himself. 
Thus  a  principal  may  be  liable  for  a  libel  published  by 
his  agent  in  the  course  of  his  business,  and  he  may  be 
either  joined  with  the  agent  in  the  suit  or  sued  alone  as 
principal.®    The  assent  of  the  proprietor  of  a  business 
must  be  presumed  to  have  been  given  to  the  reports,  ad- 
vertisements, etc.,  published  by  his  agents  in  managing  it, 
and  to  the  letters  written  by  them  in  carrying  it  on." 
The  request  may  be  implied,  as  where  a  person  sends  a 
manuscript  to  the  editor  of  a  paper,  or  makes  a  statement 
to  a  reporter.^     One  partner  in  a  firm  engaged  in  dealing 
in  furniture  and  draperies  is  not,  merely  because-of  being 
partner,  liable  for  a  libel  published  by  another  partner; 
or  a  servant  of  the  firm,  by  placing  a  placard  on  a  piece 
of  furniture,  the  property  of  the  firm,  offering  it  for  sale." 
That  defendant  threatened  to  publish  libelous  mattpr  of 
the  plaintiff,  and  that  it  was  afterwards  published,  is  some 
evidence  from  which  a  jury  may  infer  that  defendant  was 


*  Cooley  on  Torts,  194.  See  Bentley 
V.  Reynolds,  1  McMuU.  16;  36  Am. 
Deo.  251, 

'''  "If  one  reads  a  libel,  that  is  no 
publication  of  it;  or  if  he  hears  it 
read,  it  is  no  publication  of  it;  for  be- 
fore he  reads  or  hears  it,  he  cannot 
know  it  to  be  a  libel;  or  if  he  hears  or 
reads  it,  and  laughs  at  it,  it  is  no  pub- 
lication of  it;  or  if  he  writes  a  copy 
of  it,  and  does  not  publish  it  to  others, 
it  is  no  publication  of  the  libel;  but  if 
after  he  has  read  or  heard  it,  he  re- 
peats it,  or  any  part  of  it,  in  the  hear- 
ug  of  others,  or  after  that  he  koows 


it  to  be  a  libel,  he  reads  it  to  others, 
that  is  an  unlawful  publication  of  it' ; 
John  Lamb's  Case,  9  Rep.  60. 

'  Odgers  on  Libel  and  Slander,  360, 

*  Odgers  on  Libel  and  Slander,  360; 
and  see  Title  Agency. 

*  Philadelphia    etc.   R.   R.  Co,  c, 
Quigley,   21  How.   202;   Maynard 


Ins. 
672. 


Co.,   34  Cal.    48;  91  Am.  Dec, 


Cooley  on  Torts,  195. 

'  Odgers  on  Libel  and  Slander,  155; 
Bond  V.  Douglas,  7  Car.  &  P.  626. 

^  Woodling  V.  Knickerbocker,  31 
Minn,  268. 


2195 


DEFAMATION   IN   GENERAL. 


§1287 


the  author  of  the  article.^    One  who  writes  an  article,  and 
employs  another  person  as  his  agent  to  translate  it  into 
another  language  and  publish  it,  will  be  liable  if  the  arti 
cle  so  published  is  libelous,  although  the  translation  is 
inaceurate.2    A  joint  publication  of  a  libel  by  two  de- 
fendants  is  sufficiently  proved  by  evidence  that,  pursuant 
to  a  previous  proposal  between  them,  one  wrote  the  letter 
containing  the  libel,  the  other  assisting  in  composing  it 
and  that  it  was  then  sent  by  mail  to  the  person  to  whom' 
It  was  addressed.'     But  proof  that  a  person  wrote  a  libel- 
ous  article  from  matter  communicated  partly  orally  and 
partly  in  writing  to  him  by  another  person,  is  not  suffi- 
cient  evidence  to  prove  that  the  latter  published  or  pro- 
cured  the  former  to  publish  the  libel,  where  it  does  not 
appear  that  he  suspected  the  communication  would  be 
used  for  such  a  purpose.'* 

That  one  has  already  been  sued  is  no  defense  to  an  action 
brought  against  any  of  the  others  in  respect  of  the  same 
libel."  Nor  is  the  fact  that  such  actions  are  pending  to 
be  taken  into  consideration  by  the  jury  in  assessinglhe 
damage  arising  from  the  publication  by  the  present 
defendant.^  But  if  there  be  two  distinct  and  separate 
publications  of  the  same  libel,  a  defendant  who  was  con- 
cerned  in  the  first  publication,  but  wholly  unconnected 
with  the  second,  would  not  be  liable  for  any  damages  which 
he  could  prove  to  have  been  the  consequence  of  the  second 
publication,  and  in  no  way  duo  to  the  first.^ 

Illustrations. -H.  brought  the  manuscript  of  a  libelous 
Bong  to  M.  to  have  one  thousand  copies  printed;  M.  printed  one 
thousand,  and  sent  three  hundred  to  H.'s  shop.  H.  gave  several 
copies  to  a  witness,  who  sang  it  about  the  streets.  It  did  not 
appear  in  whose  writing  the  manuscript  was;  but  probably  not 
in  II.  s.    Held,  that  both  H.  and  M.  had  published  the  libel: 

May,  2   Fost. 


'  Bent  V.  Mink,  46  Iowa,  576. 

'^  Wilson  V.  Noonan,  27  Wis.  598. 

^Miller  V.  Butler,  6  Cuah.   71;  52 
Am.  Due.  768. 

/Cochran  v.  Butteraeld,  18  N.  H. 
Ho;  45  Am.  Dec.  363. 


*  Frescoo 
123. 

*  Harrison  v.  Pearce,  1 
567;  32  L.  T.  298. 

^  Odgers  on  Libel  and  Slander,  157. 


&    F. 

Fost.  &  F. 


§1237 


SLANDER   AND   LIBEL. 


2196 


Johnson  v.  Hudson,  7  Ad.  &  E.  283;  1  Har.  &  W.  680.  Tlic  de- 
fendant's daughter,  a  minor,  was  authorized  to  make  out  his  hills 
and  write  his  general  business  letters;  she  chose  to  insert  libel- 
ous matter  in  one  letter.  Held,  that  the  father  was  not  liable  for 
the  wrongful  act  of  his  daughter,  in  the  absence  of  any  direct  in- 
structions: Ilardinrf  v.  Greening,  8  Taunt.  42.  D.  and  C.  signed 
a  written  communication  to  a  newspaper,  libeling  the  charac- 
ter of  H.,  and  intrusted  it  to  L.  for  publication.  L.  carried  it  to 
a  correspondent  of  the  newspaper,  who  re-wrote  it,  cutting  it 
down,  and  signed  the  names  of  D.  and  C.  without  direct  author- 
ity from  them.  It  was  published  as  thus  re-written  and  sigtietj. 
D.  and  C.  saw  the  publication  and  did  not  disavow  it,  and  D. 
refused  to  disavow  it  to  a  person  sent  to  him  by  H.  on  the  subject, 
and  said  he  had  signed  it.  Held,  that  a  finding  against  D.  and 
C.  in  an  action  for  libel  by  H.  would  be  affirmed  as  to  D.  and 
reversed  as  to  C:  Datvsnn  v.  Holt,  11  Lea,  583;  47  Am.  Rep.  312. 
C.  told  tlie  editor  of  a  newspaper  several  good  stories  against  the 
Rev.  J.  K.,  and  asked  the  editor  to  "show  Mr.  K.  up";  subse- 
quently the  editor  published  the  substance  of  them  in  the 
newspaper.  Held,  a  publication  by  C,  although  the  editor 
knew  of  the  facts  from  other  quarters  as  well:  R.  v.  Cooper,  15 
L.  J.  Q.  B.  206;  8  Q.  B.  533.  At  the  meeting  of  the  board  of 
guardians,  at  which  reporters  were  present,  it  was  stated  that 
the  plaintiff  had  turned  his  daughter  out  of  doors,  and  that  she 
consequently  had  been  admitted  into  the  workhouse  and  had 
become  chargeable  to  the  parish.  E.,  one  of  the  guardians, 
said,  "I  hope  the  local  press  will  take  notice  of  this  very  scan- 
dalous case,"  and  requested  the  chairman,  P.,  to  give  an  outline 
of  it.  This  P.  did,  remarking,  "  I  am  glad  gentlemen  of  the 
press  are  in  the  room,  and  I  hope  they  will  give  publicity  to  the 
matter."  E.  added,  "  And  so  do  I."  From  the  notes  taken  in 
the  room  the  reporters  prepared  a  condensed  account,  which 
appeared  in  the  local  newspapers,  and  which,  though  partly  in 
the  reporters'  own  language,  was  substantially  a  correct  report 
of  what  took  place  at  the  meeting.  Held,  that  the  trial  court 
was  wrong  in  directing  the  jury  that  there  was  no  evidence  to  go 
to  the  jury  that  P.  and  E.  had  directed  the  publication  of  the 
account  which  appeared  in  the  papers:  Parkes  v.  Prescoit,  L.  R. 
4  Ex.  169.  An  action  was  brought  for  libel  in  causing  to  bo 
published  a  petition  asking  plaintiff,  a  county  commissioner, 
to  resign,  because  he  had  acted  and  voted  as  an  officer  in  matters 
involving  his  own  private  interests;  it  was  alleged,  and  some 
evidence  was  introduced  to  show,  that  the  petition  was  published 
in  a  newspaper  and  circulated  from  hand  to  hand.  Held,  that 
every  person  signing  the  paper  knowing  that  it  was  intended 
to  be  printed,  or  who  signed  it  and  delivered  it  to  another 
without  knowing  that  it  would  be  printed,  was  guilty  of  circu- 


2197 


DEFAMATION  IN  GENERAL. 


§  1238 


1-/  V  »»».*»•-•-' 

rried  it  to 
cutting  it 
ct  aiitlior- 
ndsigiKMl. 
it,  and  1). 
[le  subject, 
nst  D.  and 
,  to  D.  and 
I.  Hep.  312. 
igainst  the 
p";  Bubise- 
,em  in  the 
the   editor 
,  Coo2-)er,  15 
tie  board  of 
stated  that 
,nd  that  she 
,66  and  had 
guardians, 
s  very  scan- 
•e  an  outline 
;men  of  the 
dicity  to  the 
tea  taken  in 
iount,  which 
th  partly  in 
)rrect  rc^port 
^u  trial  court 
ridence  to  go 
;ation  of  tlie 
'rescott,  h-  R- 
lusing  to  be 
)inmissioncr, 
er  in  matters 
|d,  and  s^ome 
[as  publislied 
'     Helil  thiit 
was  intended 
It  to  auotlier 
ilty  of  circu- 


lating it;  that  signing  and  delivering  it  would  be  in  itself  a 
publication;  and  that  if  no  protest  or  direction  against  its  being 
printed  was  made  by  the  signer,  and  it  was  afterwards  printed 
by  the  person  to  whom  it  was  delivered,  or  by  his  authority,  it 
uas  no  defense  that  the  signer  did  not  intend  or  direct  its 
publication  in  the  paper:  Cotulla  v.  Kerr,  Tex.  1889. 

§  1238.  Same  —  Newspapers.  —  For  a  libel  in  a  news- 
paper, editor,  author,  publisher,  proprietor,  and  printer, 
if  different  persons,  are  all  liable,  jointly  or  severally,  for 
the  entire  damage  done.^  The  proprietor  or  publisher  of 
a  newspaper  edited  by  another  is  responsible  for  a  libel 
published  therein,  though  without  his  knowledge.^  And 
the  publisher  is  liable,  although  the  name  of  the  author 
is  given.'  A  newspaper  proprietor  who  allows  an  editor 
or  reporter  to  print  in  the  columns  of  his  paper  whatever 
such  editor  or  reporter  may  see  fit  is  liable  in  damages 
for  a  libel  so  inserted  by  such  editor  or  reporter,  although 
such  proprietor  may  not  have  directed  its  publication, 
and  may  have  known  nothing  about  it  at  the  time.*  And 
in  such  a  case,  if  the  matter  was  inserted  by  the  editor  or 


'  R.  V.  Walter,  3  Esp.  21;  Watts  v. 
Fraser,  7  Car.  &  P.  369;  King  v.  Root, 
4  Wend.  113;  21  Am.  Dec.  102;  Hunt 
i.  Bennett,  19  N.  Y.  175;  Thomas  v. 
Croswell,  7  Johns.  264;  5  Am.  Dec. 
LMD;  Harrison  v.  Pearce,  1  Fost.  &  F. 
ytl";  Kuyzor  v,  Newcomb,  1  Fost.  &  F. 
5J9,  "It  is  clear  law  that  the  prop- 
rietor of  a  newspaper  is  both  civilly 
iiml  criminally  responsible  for  what- 
ever a]  I  pears  in  its  columns,  although 
the  puljlication  may  have  been  made 
witliout  his  knowledge,  and  in  his  ab- 
teiico.  For  he  must  be  taken  to  have 
nrilereil  his  servants  to  print  and  sell 
wliiitcvfr  manuscript  the  editor  might 
Beiiil  tliem  for  that  purpose.  The 
proprietor  trusts  to  the  discretion  of 
the  eilitor  to  exclude  all  that  is  libel- 
ous; if  the  editor  fails  in  this  duty, 
still  tile  paper  will  be  printed  and  pub- 
lislied  by  the  proprietor's  servants,  by 
virtue  of  his  general  orders.  So  if  a 
master  printer  has  contracted  to  print 
a  mouthly  magazine,  he  will  be  liable 
for  any  libel  that  may  appear  in  any 


number  printed  at  his  office.  So  every 
bookseller  must  be  taken  to  have  told 
his  shopmen  to  sell  whatever  books  or 
pamphlets  are  in  his  shop  for  sale;  if 
any  one  contain  libelous  matter,  the 
bookseller  is  {prima  facie  at  all  events) 
liable  for  its  publication  by  his  ser- 
vant by  reason  of  such  general  instruc- 
tions ":  Odgers  on  Libel  and  Slander, 
360. 

'•«  Andres  v.  Wells,  7  Johns.  260;  5 
Am.  Dec.  267;  Lewis  v.  Hudson,  44 
Ga.  572;  Harrison  v.  Pearce,  1  Fost.  & 
F.  567;  Perret  v.  Times,  25  La.  Ann. 
170;  Atkins  v.  Johnson,  43  Vt.  78;  5 
Am.  Rep.  260;  Dunn  v.  Hall,  1  Ind. 
345;  Scripps  v.  Reilly,  35  Mich.  371; 
24  Am.  Rep.  575;  Storey  v.  Wallace, 
60  III.  51 ;  Buckley  v.  Knapp,  48  Mo. 
152;  HuflF  v.  Bennett,  4  Sandf.  120; 
Curtis  V.  Muasey,  6  Gray,  261. 

*  Dole  V.  Lyon,  10  Johns.  447;  6 
Am.  Dec  346. 

*  Bruce  v.  R«ed,  104  Pa.  St.  408;  49 
Am.  Rep.  586. 


1238 


SLANDER  AND  LIBEL. 


2198 


reporter  while  acting  for  the  proprietor  within  the  gon- 
eral  scope  of  his  employment,  the  proprietor  will  be  an- 
swcrable  in  exemplary  damages  for  the  malice,  gross  nog. 
ligence,  or  wantonness  of  the  editor  or  reporter  in  like 
manner  as  though  he  had  done  the  wrong  in  proper  por- 
son.^  Thus  a  proprietor  of  a  newspaper  will  be  held  ]ial)le 
for  an  accidental  slip  made  by  his  printer's  man  in  setting 
up  the  type,''  or  for  a  libelous  advertisement  inserted  by 
the  editor  without  his  knowledge.' 

The  publisher  is  not  responsible  for  a  libel  which  he 
does  not  know  to  be  libelous.*   A  newspaper  proprietor  is 
u"       :'ponsible  in  exemplary  damages  for  the  actual  nia- 
!,         1"      reporter  in  procuring  the  publication  of  a  libel- 
ous article,  unless  the  former  has  participated  in  or  ratified 
ii'  1  confirmed  the  malicious  act.^     One  cannot  be  held 
liable  lor  a  Jinel  published  in  a  newspaper  upon  a  sliow- 
ing  that  he  was  secretary  and  treasurer  of  a  joint-stock 
association  owning  the  paper;  that  he  owned  a  majority 
of  the  stock  of  the  association,  and  had  a  kind  of  super- 
vision of  the  articles  published  therein,  but  not  a  control- 
ling  influence,  it  appearing  that  he  had  no  knowledge  of 
or    personal    connection    with    the  article  in  question.' 
Whore  a  printing-press  and  newspaper  establishment  were 
assigned  to  a  person  merely  as  security  for  a  debt,  and 
the  press  remained  in  the  sole  possession  and  manage- 
ment of  the  assignor,  the  ownership  of  the  assignee  is  not 
such  as  to  render  him  liable  to  an  action  as  proprietor 
for  a  libelous  publication.'     If  one  newspaper  copy  and 
publish  a  libelous  article  from  another  newspaper,  the 


'  Bruce  v.  Reed,  104  Pa.  St.  408;  49 
Am.  Rep.  586. 

•■'  Shepheard  v.  Whitaker,  L.  R.  10 
Com.  P.  502;  32  L.  T.  402. 

'  Harrisoa  v.  Pearce,  1  Fost.  &  F. 
567. 

♦  Dexter  v.  Spear,  4  Mason,  115; 
Smith  V.  Ashley,  11  Met.  367;  45 
Am.  Dec.  217.  In  Michigan,  on  the 
question  of  mistake  in  reporting  the 


couteuta   of  a   lef^U  document,  it  ia    Am.  Dec.  267. 


error  to  charge  that  such  care  as 
reporte.'s  usually  use  ia  the  staiulard 
by  which  to  determine  the  newspaper's 
liability.  Reporters  must  use  such 
degree  of  care  as  is  reasonably  sure  to 
prevent  mistake:  Park  v.  Detroit  Free 
Press  Co.,  Mich.  1889. 

*  Eviston  V.  Cramer,  57  Wis.  570. 

*  Mecabe  v.  Jones,  10  Daly,  2'22. 
'  Andres  v.  Welles,  7  Johns.  2G0;  5 


2199 


DEFAMATION   IN   GENERAL. 


§1239 


1  the  gcn- 
vill  be  an- 
gross  lu'g- 
ter  in  like 
proper  por- 
held  liiilAe 
n  in  setting 
inserted  by 

el  which  he 
»roprietor  is 
3  actual  nia- 
n  of  a  lib^l- 
in  or  ratified 
not  be  held 
ipon  a  show- 
a  joint-stock 
d  a  majority 
nd  of  super- 
.ot  a  control- 
:nowledge  of 
n  question.' 
shment  were 
a  debt,  and 
tnd  manage- 
isignee  is  not 
,s  proprietor 
ler  copy  and 
Iwspaper,  the 


first  paper  makes  the  article  its  own,  and  is  liable  for  all 
damages  resulting  from  its  publication.  The  fact  that  it 
had  previously  appeared  in  the  other  paper  is  no  defense, 
though  it  may  tend  to  mitigate  the  damages.'  Evidence 
that  the  plaintiff  had  in  a  previous  action  recovered  dam- 
ages against  the  other  paper  for  the  same  article  is  alto- 
gether inadmissible,  as  in  that  action  damages  were  given 
only  for  the  publication  of  the  libel  in  that  paper.^ 

Illustrations. — The  defendant,  M.,  regularly  printed  a  mag- 
azine, but  had  nothing  to  do  with  preparing  the  illustrations. 
One  number  contained  a  libelous  lithographic  print.  Held,  that 
he  was  liable  for  this  print,  though  he  had  never  seen  it,  be- 
cause it  was  referred  to  in  a  part  of  the  accompanying  letter- 
press, which  had  been  printed  by  his  servants.  The  editor  was 
liable  also:  Watts  v.  Frascr  and  Moyes,  7  Car.  &  P.  369;  7  Ad. 
&  E.  223.  The  proprietor  of  a  newspaper  on  going  away  for  a 
holiday  expressly  instructed  his  acting  editor  to  publish  nothing 
exceptionable,  personal,  or  abusive,  and  warned  him  especially 
to  scan  very  particularly  any  article  brought  in  by  B.  The 
editor  permitted  an  article  of  B's  to  appear  which  containetl 
libelous  matter.  Held,  that  the  proprietor  was  liable,  though 
the  publication  was  made  in  his  absence  and  without  his 
knowledge:  Dunn  v.  Hall,  1  Ind.  345. 

§1239.    Repetition  of  Libel  — Who    Liable.  —  Every 

person  who  sells  or  gives  away  a  written  or  printed  copy 
of  a  libel  may  be  made  a  defendant,  unless  he  was  igno- 
rant of  the  contents.  Every  sale  or  delivery  of  a  written 
or  printed  copy  of  a  libel  is  a  new  publication. '^  But  a 
servant  who,  in  the  course  of  business,  delivers  parcels 
containing  libelous  handbills  is  not  liable  in  an  action 
for  libel,  if  shown  to  be  ignorant  of  the  contents  of  the 
parcel.*     The  sender  of  a  libelous  letter  is  liable  for  its 

*  Day  V.  Bream,  2  Moody  &  R.  54. 
"A  servant  carries  a  libelous  letter 
for  his  master,  addres.reJ  to  C.  It  is 
his  duty  not  to  read  it.  If  he  does 
read  it,  that  is  a  publication  by  his 
master  to  hiui,  although  he  was  never 
intended  to  read  it.  If  after  reading 
it  he  delivers  it  to  C,  then  this  is  a 
publication  by  the  servant  to  C. ,  for 
which  the  person  libeled,  not  being  C, 


'  Saunders  v.  Mills,  3  Moore  &  P. 
520;  C  Bing.  213;  Talbutt  v.  Clark,  2 
Moody  &  li.  313;  McDonald  v.  Wood- 
ruff, 2  Dill.  244;  Hotchkiss  v.  Oli- 
phant,  2  Hill,  510. 

''  Creevy  v.  Carr,  7  Car.  &  P.  64; 
Hunt  V.  Algar,  6  Car.  &  P.  245. 

'  Duke  of  Brunswick  v.  Harmer,  14 
Q.  B.  185;  Staub  v.  Van  Bethuysen,  3G 
La.  Ann.  467. 


g  1239 


SLANDER  AND  LIBEL. 


2200 


further  publication  by  the  receiver,  if  such  further  pub- 
lication  was  a  probable  consequence  of  sending  it.*  But 
one  who  authorized  libelous  words  to  be  published  in  a 
Chicago  newspaper  is  not  liable  for  their  republication  in 
a  San  Francisco  paper,  in  the  absence  of  any  evidence 
tending  to  connect  him  with  the  publication.*  It  is  no 
defense  to  an  action  of  libel  for  a  publication  in  a  news- 
paper that  the  publishers  believed  the  article  to  be  true/ 
or  that  the  person  libeled  has  failed  to  prosecute  for  a 
previous  publication  of  the  libel.* 

Illustrations.  —  A,  at  his  news-stand,  sold  a  newspaper 
containing  a  libel  upon  B.  Held,  that  ho  was  responsiiyio  in 
damages  to  B  for  publication:  Staub  v.  Van  Benthuysen,  oG  La. 
Ann.  4G7.  Defendant  sent  to  a  newspaper  as  an  advertisement 
a  false  statement  that  he  wanted  the  plaintiff  to  pay  a  bill.  The 
publisher  put  it  among  other  "  wants,"  one  of  which  called  for 
a  "  dead-head."  A  third  person  cut  the  advertisement  out, 
pasted  it  on  a  postal  card,  and  sent  it  to  a  young  woman  en- 
gaged to  be  married  to  plaintiff.  Held,  libelous,  and  that  it 
was  a  question  of  fact  whether  the  sending  of  the  postal  card 
was  a  natural  consequence  of  the  publication:  Zierv.  Hofflln,  33 
Minn.  66;  53  Am.  Rep.  9.  Defendant  at  a  hearing  before  the 
governor  presented  to  him  and  to  three  other  persons  copies  of  a 
pamphlet  prepared  by  a  third  person  and  bearing  upon  the 
matter  in  hand.  This  pamphlet  contained  a  reflection  upon 
plaintiff's  character,  plaintiff's  name,  however,  not  being  given. 
There  was  no  express  malice,  and  defendant  was  ignorant  of  the 
precise  contents  of  the  pamphlet.  Held,  that  the  action  was 
not  maintainable:  Woods  v.  Wiman,  47  Hun,  362.  A  libelous 
article  indicating  that  a  neighboring  ticket-broker  is  not  reli- 
able is  conspiciously  posted  forty  days  in  the  ticket-office  of  a 
railroad  company  whose  principal  terminus  and  oflice  are  in 
the  same  city.  There  is  evidence  that  such  office  is  used  to 
publish  general  information  of  interest  to  purchasers  of  tickets. 
Held,  that  the  jury  may  find  that  the  company  had  knowledge 


can  sue  either  the  master  or  the  ser- 
vant, or  both.  If  the  servant  never 
reads  it,  but  simply  delivers  it  as  he 
was  bidden,  then  he  is  not  liable  to  any 
action,  unless  he  either  knew,  or  ought 
to  have  known,  that  he  was  being  em- 
ployed illegally.  If  he  either  knew,  or 
ought  to  have  known,  then  it  is  no 
defense  for  him  to  plead,  '  I  waa  only 


obeying  orders  ' ":  Odgers  on  Libel 
and  Slander,  161. 

1  Miller  v.  Butler,  6  Cush.  71;  52 
Am.  Dec.  768. 

»  Clifford  V.  Cochrane,  10  111.  App. 
570. 

'  Cass  V.  New  Orleans  Times,  27  La, 
Ann.  214. 

*  Curtis  V.  Mussey,  6  Gray,  261t 


2201 


DEFAMATION   IN    GENERAL. 


§  124a 


of  tlic  character  of  the  notices  posted,  and  that  the  libel  would 
not  liiivc  reiiKiin(;d  posted  so  long  had  not  the  company  author- 
izi'd  or  ratified  it:  Fo(j(j  v.  Ji,  It.  Co.,  148  Mass.  513. 

^  1240.  Repetition  of  Slander.  —  Every  person  who 
repeats  a  slander  to  othere  which  some  one  else  has 
stalled,  or  which  has  been  told  to  him,  is  liable.*  It  is 
no  defense  that  he  did  not  originate  it,  or  that  it  was  a 
current  rumor,  and  he  believed  it  true;''  or  that  he  says 
Ihul  lie  does  not  believe  it,'  or  although  the  charge  was 
ro})eated  for  the  purpose  of  asking  advice;*  or  that  when 
he  repeated  it  he  gave  his  authority,  or  merely  said  that 
so  uud  so  said  so.°  It  is  immaterial  that  the  slanderous 
words  were  not  repeated  with  any  desire  to  extend  their 
circulation,  or  confirm  the  story,  or  cause  the  person  to 
wlioui  it  is  told  to  believe  it  to  be  true.®    A  slander,  un- 


'  Calloway  V.  Middleton,  2  A.  K. 
Marsli.  :M'2;  12  Am.  Dec.  409;  Evana 
i.  SiiiiUi,  ■)  T.  B.  Mon.  nG.3;  17  Am. 
Dec.  74.  Where  oiio  hears  another 
nuikf  a  charge  which  he  repeats,  he 
will  not  he  exempt  from  1  lability,  ua- 
loss,  at  the  time  of  repeating  the 
words,  lio  afifords  the  person  of  whom 
tiio  charge  is  made  a  cause  of  action 
agiiiiist  the  original  author:  John- 
son i:  St.  Louis  Dispatch  Co.,  65  Mo. 
5311;  27  Am.  Rep.  293. 

-  Watkiu  V.  Hall,  L.  R.  3  Q.  B.  396; 
Carpenter  v.  Bailey,  53  N.  H.  590; 
Oillowiiv  V.  Middleton,  2  A.  K. 
Miirsh.  372;  12  Am.  Dec.  409;  Shenck 
«,.Sliciiuk.  20  N.  J.  L.  208;  Funk  v. 
Beverly,  112  Ind.  190. 

'  Finch  V.  Finch,  21  S.  C.  342. 

*  Braustetter  v.  Dorrough,  81  Ind. 
527. 

^Johnson  v.  Brown,  57  Barb.  118; 
McPhcrson  i'.  Daniels,  10  Barn.  &  C. 
270;  Ua  Crespigny  v.  Wellesley,  5 
Biiig.  :i'J2;  Inman  v.  Foster,  8  Wend. 
602;  Treat  v.  Browning,  4  Conn.  408; 
10  Am.  Dec.  156;  Dole  v.  Lyon,  10 
Jolnu.  447;  6  Am.  Dec.  346;  Jarni- 
gau  f.  Fleming,  43  Miss.  711;  5  Am. 
Rep.  ,")14;  Miller  v.  Kerr,  2  McCord, 
2S.J;  U  Am.  Dec.  722;  Terwilliger  v. 
Wands,  17  N.  Y.  54;  72  Am.  Dec. 
420;  Jobastoa  v.  Lance,  7  Ired.  448; 


Skinner  v.  Powers,  1  Wend.  451 ;  Sana 
V.  Joerris,  14  Wis.  663;  Fowler  i\  Chi- 
chester, 26  Ohio  St.  9.  Contra,  Tat- 
low  V.  Jacket,  1  Harr.  (Del.)  333;  26 
Am.  Dec.  399. 

*  In  Kenney  v.  McLaughlin,  5 
Gray,  3,  66  Am.  Dec.  345,  the  court 
say:  "The  uttering  of  the  words  is 
a  wrongful  act,  purposely  done,  and 
this  is  sufficient  to  constitute  legal 
malice.  To  prove  legal  malice,  it  ia 
not  necessary  to  show  that  the  words 
were  uttered  from  personal  enmity  or 
ill-will.  When  the  words  arc  uttered, 
the  true  measure  of  damages  is  the 
injury  caused  by  the  utterance.  The 
'story'  uttered  or  repeateil  by  the 
defendant  contains  a  charge  against 
the  plaintifif  of  a  nature  to  destroy 
her  reputation.  It  was  a  false  charge. 
It  is  no  answer  in  any  forum  to  say 
that  she  only  repeated  the  story  as 
she  heard  it.  If  the  story  was  false 
and  slanderous,  she  must  repeat  it  at 
her  peril.  There  is  safety  in  no  other 
rule.  Often  the  origin  of  the  slander 
cannot  be  traced.  If  it  were,  possiJjly 
it  might  be  harmless.  He  who  gives 
it  circulation  gives  it  its  power  of 
mischief.  It  is  the  successive  repeti- 
tions that  do  the  work.  A  falsehood 
often  repeated  gets  to  be  believed. 
We    think  the    iostructious  of    the 


§1240 


SLANDER   AED   LIBEL. 


2202 


like  a  written  or  printed  libel,  can  seldom  bo  circulate'] 
by  an  innocent  hand,  unconscious  of  the  nature  of  hij 
act;  honce  a  person  uttering  slanderous  words  is  liuMo 
only  for  tlie  effect  of  his  publication  of  them,  and  not  for 
the  results  of  their  repetition  by  others,*  unless  the  ut- 
terer  intended  that  the  words  should  be  repeated  in  tho 
way  they  were,  or  knew  from  the  relations  of  the  parties 
that  they  would  certainly  be.'*    In  a  leading  case  in  New 


learned  judge  wore  not  in  conformity 
to  the  law,  as  understood  in  tliis 
commonwealth:  Walcott  v.  Hall,  6 
Mass.  514;  4  Am.  Dec.  173;  Alderman 
V.  French,  1  Pick.  18;  11  Am,  Dec. 
114;  Bodwell  v.  Osgood,  3  Pick.  379; 
15  Am.  Dec.  228;  Commonwealth  v. 
Snelling.  15  Pick.  337;  Stone  v.  Var- 
ney,  7  Mot.  91;  39  Am.  Dec.  762; 
Watbon  V.  Moore,  2  Cush.  133.  The 
jury  were  instructed  that  if  the  de- 
fendant merely  said  there  was  a  re- 
port in  circulation  of  the  kind  set 
forth  in  the  writ,  and  did  not  say  so 
with  any  design  to  extend  its  circula- 
tion, or  in  any  degree  to  cause  the 
person  whom  she  addressed  to  believe 
or  suspect  the  charge  which  the  story 
imputed  to  be  true,  or  to  add  to  it 
any  sanction  or  authority  of  her  own, 
or  to  give  it  any  further  circulation 
or  credit,  and  it  was  true  that  such 
story  was  in  circulation,  it  would  not 
be  actionable  to  say  so.  It  seems 
scarcely  possible  that  a  story  could  be 
repeated  by  a  person  of  any  respecta- 
bility under  the  circumstances  and 
with  the  results  supposed.  To  say 
that  such  a  story  is  current,  and  to 
relate  it  to  one  before  that  time  igno- 
rant of  its  existence,  necessarily  gives 
it  further  circulation;  and  a  i)arty  ia 
presumed  to  know  and  intend  the 
necessary  consequences  of  his  acts. 
And  such  is  the  case  l)efore  us.  The 
witness  had  never  heard  of  the  story, 
and  expresses  her  disbelief  of  it.  The 
defendant,  so  far  from  expressing  a 
concurrence  in  the  witness's  disbelief, 
replies:  '  It  [the  story]  is  all  over 
the  glass-house. '  And  when  the  wit- 
ness says  this  could  not  be,  or  her 
husbanil,  who  worked  at  the  glass- 
house, would  !iave  heard  it,  the  de- 
fendant replied:  'It  was  not  in  the 
upper    but  ^  the   lower    glass-houae,' 


The  story  is  related  to  one  bofuro  ig. 
norant  of  it,  without  giving  the  jitr. 
son  from  whom  it  was  received,  uitli. 
out  expressing  any  disbeliif  df  it, 
without  any  apparent  pur])osc  df  in. 
quiry  us  to  its  truth,  and  with  tiie 
assertion  in  reply  to  tho  disbiliuf  of 
the  witness  of  the  currency  fit"  tlio  re- 
port. It  seems  to  lis  that  lliu  jury, 
treating  the  instructions  as  ainilicalile 
to  the  case  before  them,  nuiy  have 
been  misled;  that  they  may  liavo  un- 
derstood tho  learned  judge  to  hum 
that  tho  simple  repetition  of  a  slan- 
derous story,  without  express  malioo, 
was  not  actionable.  But  uinliir  tlie 
limitations  stated,  if  they  wur(!  [mssi- 
ble,  we  think  tho  rule  laid  down  ij 
not  the  law.  A  man  cannot  siiy  that 
there  is  a  story  in  circulation  that  A 
poisoned  his  wife,  or  li  picldMl  d 
pocket  in  the  omnibus,  or  tluit  1)  has 
committed  adultery,  and  relate  the 
story,  and  when  called  upnu  to  an- 
swer, say:  'There  was  suoli  a  story 
in  circulation;  I  but  repeated  what  I 
heard,  and  had  no  design  to  circulate 
it  or  confirm  it ';  and  for  two  very 
plain  reasons:  that  tho  repetitiiui  of 
tho  story  must,  in  tho  nature  of 
things,  give  it  currency;  and  tho  repe- 
tition without  the  expressinn  of  dis- 
belief will  confirm  it.  The  daiiu'uris 
an  obvious  one,  and  long  sinci!  pdiiiteJ 
out,  and  it  ia,  that  bad  men  may  give 
currency  to  slanderous  reports,  and 
then  find  in  that  currency  tlieir  ovn 
protection  from  the  just  conseiiuences 
of  a  repetition. " 

>  Ward    V.    Weeks,    7    Bing.  211; 
Hastings  v.   Stetson,  126  Mass.  3:'9;  | 
30  Am.  Rep.  683;  Ward  v.  Dick,  47 
Conn.  300;  36  Am.  Rep.  75;  SliurtM 
V.   Parker,   130  Mass.   293;  3'J  Am.  f 
Rep.  454.  . 

"  Odgers  oa  Libel  and  Slander,  U 


2202 


2203 


DEFAMATION  IN  GENERAL. 


g  1240 


0  circul;U(?d 
aturo  of  h.j 
(Is  is  liable 
and  not  for 
ilcss  the  ut- 
teatod  in  the 
"  the  purlics 
case  in  Xew 

to  ono  bcforo  ig- 
i  giving  tlio  per. 
13  received,  witli- 
disbulict'  (if   it, 
it  purimso  (if  in- 
th,  iiiul  with  tiie 
o  tho  disl)(.lii;f  of 
urrency  of  tho  re- 
lis  that  tho  jury, 
tiona  as  iqipliciihle 
them,  may  have 
ncy  may  havi!  lin- 
ed jmtgti  to  mean 
petition  of  a  slan- 
)Ut  cxx>rcss  laahoc, 
).     But  uml(jr  the 
if  they  wore  possi- 
rulo  laid  dnwu  ij 
m  cannot  say  that 
lircuhitiou  that  A 
or  li  l)ii.:k';'l  C's 
(US,  or  that  1)  has 
py,   and  rcV.ito  tho 
jailed  upon  to  an- 
was  such  a  story 
.t  repeated  what  I 
iesigu  to  cirLulate 
and  for  two  very 
the  repetition  uf 
|in    the    nature  of 
•ncy;  and  tho  rope- 
expression  of  (lis- 
it.     The  dauu'eris 
.long  since  pointed 
.bad  men  may  give 
erous  reports,  and 
•urrency  tlioir  o^^l 
just  cousc(iuence! 

tks,  7  Bing.  211; 
bn,  126  iMas3.  &, 
fWard  V.  I'ick.^^ 
Eep.  75;  Shurtlefl 
lass.   293;  3'J  Am.] 

[l  aud  SlaQ<ler,  161^ 


York  tho  court  say:  "  Where  slanderous  words  arc  re- 
peated innocently,  and  without  an  intent  to  deftuno,  as 
under  some  circumstances  they  may  be,  I  do  not  see  why 
the  author  of  tho  slander  should  not  bo  hold  liable  for 
injuries  resulting  from  it  as  thus  repeated,  as  ho  would 
be  if  these  injuries  had  arisen  directly  from  the  words  as 
spoken  by  himself."  * 

Illustrations.  —  Tho  defendant  said  to  tho  plaintiff  in  tho 

presence  of  others:  "Thou  art  a  sheej)-8tealing  rogue,  and  farmer 

r.  told  nie  so."    Held,  actionabl.  r  Gardiner  y.Atwatcr,  Saycrs, 

2G);  Lewes  v.  Walter,  3  Bulst.  225;  Mcqga  v.  Griffith,  Cro.  Eliz. 

400.    The  defendant  said  to  the  plaintiff,  a  tailor,  in  tlie  pies- 

encc  of  others:  "I  heard  you  were  run   away,"  scilicet,  from 

your  creditors.     Held,  actionable:  Davis  v.  Lewis,  7  Term  Rep. 

17,    W.  told  D.  that  P.'s  horses  had  been  seized  from  the  coach 

on  the  road,  that  ho  had  been  arrested,  and  that  the  bailiffs 

were  in  his  house.     D.  wont  about  telling  every  ono:  "  W.  says 

that  P.'s  horses  have  been  ocized  from  the  coach  on  the  road, 

that  he  himself  has  been  arrested,  and  that  tho  bailiffs  are  in 

his  house."     Held,  that  D.  Was  liable  to  an  action  by  P.  for  the 

skinder,  although  he  named  W.  at  the  time  as  the  person  from 

whom  he  had  heard  it;  that  it  was  no  justification  to  prove 

that  W.  did  in  fact  say  so:   defendant  must  go   further,  and 

prove  that  what  W.  said  was  true:  McPherson  v.  Daniels,  10 

Barn.  &  C.  263;  5  Moody  &  R.  251.     Mr.  and  Mrs.  D.  wrote   a 

hbelous  letter  to  the  directors  of  a  missionary  society,  and  sent 

a  copy  to  the  defendant,  who  published  extracts  from  it  in  a 

pamphlet.     The  defendant  stated  that  the  letter  was  written 

by  Mr.  and  Mrs.  D.,  and  at  the  time  he  wrote  the  pamphlet  ho 

believed  all  the  statements  made  in  the  letter  to  be  true.    Held, 

no  justification  for  his  publishing  it:   Tidman  v.  Ainslie,  10  Ex. 

63;  Mills  V.  Spencer,  Holt  N.  P.  533;  McGregor  v.   Thwaites,  3 

Barn.  &  C.  24.    A  rumor  was  current  on  the  stock  exchange  that 

the  chairman  of  the  Southeastern  Railroad  Company  had  failed, 

and  the  shares  in  the  company  consequently   fell;  thereupon 

tho  defendant  said:  "  You  have  heard  what  has  caused  the  fall, 

—  I  mean,  the  rumor  about  the  Southeastern  chairman  having 

failed."    Held,  that  a  plea  that  there  was  in  fact  such  a  rumor 

was  no  answer  to  the  action:   Wathin  v.  Hall,  L.  R.  3  Q.  B.  396; 

ae  Richards  v.  Richards,  2  Moody  &  R.  557.     W.  was  speaking 

toB.  of  the  plaintiff,  and  said:  "  He  is  a  rogue  and  a  swindler; 

I  know  enough  about  him  to  hang  him."     B.  repeated  this  to 

I  Keenholts  v.  Becker,  3  Denio,  352.    But  the  decided  cases  hardly  support 
tkiaview:  See  illustrations  jpw^. 


§1241 


SLANDER  AND   LIBEL. 


220-1 


R.  asAV.'sfltalomcnt.  Tl.  consequently  rcfuBod  to  trust  tlie  i)l,i;ii. 
tin'.  Jlihl,  tliiit  1  ho  words  wcro  n(t  Jictionablo  p'r  .sf,  inul  the 
daniiij^uwjis  too  remote:  Ward  y.  UV'(7..w,  7  Bing.  211;  4  Mnoic  it 
1*.  71)0.  II.  told  Mr.  W.  that  thui»liiintifr,  his  wife's  dreBHiiuiktr, 
was  a  woniaij  of  immoral  character.  Mr.  W.  informed  liisnifi.' 
of  this  charge,  and  she  ceased  to  employ  the  plaintiff.  //r/,(\ 
that  the  plaintiff 's  lossof  Mrs.  W.'s  custom  was  the  natura'  hikJ 
necessary  consequence  of  the  defendant's  communieal 
Mr.  W.:  Derry  v.  Ilandlry,  IG  L.  T.,  N.  S.,  263.  A  compla.,,.  ,„r 
lihel  fur  words  contained  in  a  letter,  and  notactionalde  in  tlicm. 
selves,  alleged  that  the  letter  was  read  by  third  persons  to  whom 
the  receiver  showed  it,  and  alleged  special  damage  from  I  his, 
and  not  from  the  reading  by  tho  receiver.  //(■!(/,  that  the  com. 
plaint  was  bad  for  not  alleging  that  tho  writer  authori/((l  the 
receiver  so  to  show  it:  Gough  v.  Gohhiailh,  44  Wis.  202;  2S  Am, 
Rep.  570. 


§  1241.    Construction  of  Defamatory  Words. — In  the 

early  history  of  tho  law,  it  was  a  maxim  that  vvliove 
two  meanings  wuro  possible  to  tho  words,  they  were  to  bo 
construed  in  mitlori  acnsu.  But  this  is  not  now  tho  jtrac- 
tice.  "  The  rule  that  has  now  prevailed  is,  that  wor''  lo 
to  be  taken  in  that  sense  that  is  most  natural  and  ol 
and  in  which  those  to  whom  they  are  spoken  will  bo  sure 
to  understand  them.'"  Where  the  words  are  sucli  tlmt 
the  court  will  take  judicial  notice  of  their  moaning,  it 
may  explain  their  meaning  to  the  jury.''    Thus  it  lias  been 


*  Harrison?;.  Tliornborough,  10  Mod. 
197;  Hamilton  w.  Dent,  1  Hayw.  117; 
1  Am.  Dec.  552;  Bucrs  v.  Strong,  Kirby, 
12;  1  Am.  Dec.  10;  Logan  v.  Steele,  1 
Bibb,  593;  4  Am.  Dec.  G59;  Sawyer 
V.  Eifert,  2  Nott  &  McC.  511;  10  Am. 
Dec.  C33;  McGowan  v.  Manifee,  7  T.  B. 
Men.  314;  18  Am.  Dec.  178;  Stallinga 
V.  Newman,  2G  Ala.  300;  G2  Am.  Dec. 
723;  Little  v.  Barlow,  2G  Ga.  423;  71 
Am.  Dec.  219;  Tliirman  v.  Matthews, 
1  Stew.  384;  Hogg  v.  Dorrah,  2  Port. 
212;  Butterfield  v.  Buflum,  9  N.  H. 
156;  Ogden  v.  Riley,  14  N.  J.  L.  18G; 
25  Am.  Dec.'5l3;  trarrctt  v.  Dickerson, 
19  Md.  418;  De  Moss  v.  Haycock,  15 
Iowa,  149;  Campbell  v.  Campbell,  54 
Wis.  90;  Harrison  v.  Findley,  23  Ind. 
265;  85  Am.  Dec.  456;  Adams  v.  Law- 
Bou,  17  Gratt.  250;  94  Am.  Dec.  455. 


But  see  Hopkins  v.  Becdle,  1  Caiiies, 
347;  2  Am.  Dec.  191. 

'■'  "It  is  claimed  that  the  court  (;rrc,l 
in  defining  to  the  jury  tho  iiiuiuiiii^'of 
the  abbreviation  'crini,.  con.'  Tlitie  h 
nothing  in  this  objection.  Courts  take 
judicial  notice  of  the  meaniii;;  df  wmih 
and  idioms  in  the  vernacular  of  the 
language:  1  Greenl.  Ev.,  sec.  5;  and  no 
colloquium  or  innuendo  is  nci'ossai'y  to 
point  out  their  meaning.  AVliuio  the 
meaning  of  the  words  is  well  .s'jttleJ 
by  common  usage,  there  in  no  use  of 
calling  persons  to  testify  an  to  wiiat 
was  meant  by  them  at  tho  tiiin;  they 
were  uttered,  or  to  explain  tiiuir  ineun- 
ing  if  published  in  a  newspaper.  The 
words  'ci'ini.  con.'  are  usually  uiuler- 
stood  as  an  abbreviation  for  '  criminal 
converaation,'  and  these  words  have 


2201 


2205 


DEFAMATION   IN   GENERAL. 


§  1241 


ist  the  i)l;iin- 
•  «p,  nnd  tlio 
I;  4  Moore  & 
cln'ssiiiiilicr, 
■mod  his  uiR- 
iiitiir.  HrJd, 
)  naluni'  imkI 
iiuiciit 

^onipliii...  lor 
ahlo  in  tliciu- 
soiiH  to  wiiom 
gti  from  tills, 
thiit  llu!  com- 
uthorizcd  tlie 
.  2G2;  2S  Am. 


'ds. — 111  ilio 

that  vvhe^e 

jy  were  to  bo 

ow  the  )inic- 

lat  woi"'      1-0 

and  o1 

will  bo  sure 

re  such  Unit 

moaning,  it 

it  has  been 

ioedle,  1  Climes, 

it  the  court  circ.l 
y  tlie  incaiiiiigof 
n.  con.'    Tliii'e  is 
ion.    Courts  take 
ineauiiij^of  Wdiils 
ernacuhir  t'f  the 
v.,  tice.  5;  aiuliio 
do  iaiUH'Cssai'y  to 
ing.     AVlioro  the 
a  is  well  s'.'ttleil 
lere  is  no  use  of 
jstify  as  to  what 
at  the  time  tliey 
plain  their  mean- 
newspaper.    The 
•e  usually  uiuler- 
ion  for  '  crimiiul 
hese  worda  have 


licld  lliat  tho  conrt  will  notice  tlio  meaning?  of  "  Boochor 
business"  when  applied  lo  u  cl(Tp;yinan,'  or  tho  term 
"|)('tliro^'<.;iiipf  shyster,"  as  applied  to  a  hiwyor.'^  An  allo- 
piLioM  that  the  dofondant  ciiargod  tho  plaintifF  with  slcop- 
iiit;  with  a  man  is  sutliciontly  supported  by  proof  that  ho 
cb!ir;j;ed  her  with  boing  in  bod  with  him.'*  A  cliargo  that 
awonian  "  slept  "  with  a  man  not  her  husband  is  a  charge 
of  uiK  hastity.'*  When  the  charge  against  a  married 
woiiiaii  is  that  she  is  a  liad  woman,  a  bitch,  and  a  whore, 
tho  court  cannot  say,  as  matter  )i  law,  that  the  word 
"l)iid  "  duos  not  import  a  want  oi  chastity,  but  it  is  for  tho 
jury  to  determine  the  sense  in  which  the  word  was  used." 
But  the  word  "  bitch  "  does  not  import  a  charge  of  adul- 
tery or  prostitution."  So  charging  a  person  with  keep- 
ing "  a  bad  house  "  is  not  in  itself  actionable.  The  words 
do  not  necessarily  imply  "  a  bawdy-house.'"  A  statement 
ir.  a  newspaper  that  one  was  arrested  for  diunkennesa 
does  not  assert  that  he  was  in  fact  drunk.'' 


of  themselves  acquired  a  fixed  and  uni- 
versal signiticauce.  Equally  uuobjcc- 
tionalilo  waa  the  translation   by  tho 


tnurt  of  the  words  'Jtngrante  delicto.' 

libel  publislit 
language  would,  ordinarily,  be  inter- 


Wiiile  a  libel  published  in  a  foreign 


preted  by  witnesses  skilled  in  tho 
knowledge  of  both  languages,  there 
is  a  class  of  foreign  words  that  have 
been  so  far  anglicized  by  common  use 
at)  to  have  become,  aubatantially,  a 
part  of  the  language.  Instances  of 
tiiese  arc,  ^haheas  cot-piis,'  'lioimfide,' 
' prima  fftcie,'  '  a  fortiori,' from  Latin, 
ami  a  large  number  from  the  French 
and  other  modern  languages.  Wher- 
ever such  words  occur,  it  is  clearly 
within  the  province  of  the  court  to 
detlne  them  to  the  jury:  Townshend 
oil  Slander  and  Libel,  160,  note  2; 
Homer  v.  Taunton,  5  Har.  &  McH.  6GI, 
6fi7;  Barnet  v.  Allen.  3  Hurl.  &  N.  37G; 
Hoare  v.  Silverlock,  12  Ad.  &  E.,  N.  S., 
6'.'4.  It  is  only  where  the  words  are 
amliiguous,  obscure,  or  used  in  a  local 
or  technical  sense  that  an  innuendo  is 
necessary.  Indeed,  if  the  whole  libel 
had  been  published  in  a  foreign  lan- 
guage, and  the  court  had  assumed  to 


translate  and  define  its  meaning  to  a 
jury  without  tho  aid  of  exports,  it  ia 
difficult  to  SCO  how  tliis  orrftr  could  be 
made  tho  grouuil  for  a  now  trial": 
Gibson  v.  Cincinnati  Eiiquii'or,  5  Cent. 
L.  J.  380. 

'  Bailey  v.  Kalamazoo  Pub.  Co.,  40 
Mich.  251. 

'^  Bailey  v.  Kalamazoo  Pub.  Co.,  40 
Mich.  231. 

»  Barnett  v.  Ward,  3G  Ohio  St.  107; 
38  Am.  Rep.  561. 

*  Barnett  v.  Ward,  .%  Ohio  St.  107; 
38  Am.  Rep.  561.  "  F— d  "  imports 
whoredom,  and  is  actionable  per  se: 
Linck  V.  Kelly,  25  Ind.  278;  87  Am. 
Dec.  362.  But  not  "  screwed  ":  Linck 
V.  Kelly,  25  Ind.  278;  87  Am.  Dec.  .362; 
Miles  V.  Vanhorn,  17  Ind.  245;  79  Am. 
Dec.  477;  K.  v.  H.,  20  Wis.  2.39;  91 
Am.  Dec.  397. 

^Riddell  v.  Thayer,  127  Mass. 
487. 

«  K.  v.  H.,  20  Wis.  239;  91  Am.  Dec. 
397. 

■  Peterson  v.  Sentman,  37  Md.  140; 
11  Am.  Rep.  534. 

*  Stacy  V.  Portland  Pub.  Co.,  68  Me. 
279. 


§1241 


SLANDER   AND   LIBEL. 


2206 


Words  are  construed  according  to  their  ordinary  mean- 
ing; technical  words  or  localisms  according  to  their  tech- 
nical or  local  meaning.     Where  the  libel  is  based  on  the 
use  of  a  certain  word  in  a  publication,  and  it  is  clear,  from 
a  consideration  of  the  whole  publication,  that  such  word 
was  used  in  its  popular  and  ordinary  meaning,  and  not 
in  a  technical  sense,  the  court  should  so  decide,  and  no 
evidence  of  its  technical  meaning  should  be  permitted  to 
go  to  the  jury.*     Where  a  libelous  article  is  circulated  in 
a  foreign  language,  it  is  not  necessary  to  show  that  it  was 
understood,  nor  that  those  conversant  with  such  language 
■werd    citizens.'^     But   where   the   declaration  in   slander 
charges  the  defendant  with  speaking  of  the  plaintiff  cer- 
tain actionable  words  in  the  French  language,  the  plain- 
tiff must  aver  in  his  declartion  what  he  understands  to 
be  the  meaning  in  English  of  the  French  words  charged; 
and  he  must  prove  on  the  trial  under  the  general  issue, 
>'vL    nly  the  speaking  of  some  of  the  Fren  3h  words  laid 
Avuicli  are  actionable,  but  he  must  also  prove  that  the 
translation  of  those  words  is  correct.^     The  meaning  the 
party  intended  to  convey  is  irrelevant.*     Defendant  is 
responsible  for  his  words  in  the  sense  in  which  he  used 
them.^     But  evidence  is  admissible  to  show  that  words 
apparently  actionable  in  themselves  were  not  used  in  au 
actionable  sense."    The  words  alleged  to  be  slanderous  are 
not  to  be  construed  absolutely  in  the  sense  in  which  the 
-JrertVers  understood  them,  but  in  the  sense  in  which,  in  the 
light  of  all  explanatory  circumstances  known  to  speaker 
and  hearers,  they  were  calculated  to  impress  the  hearers' 
minds,  and  be  naturally  understood.^     Where  the  words 
charged   are  ambiguous,    the    extraneous    circumstances 
under   which   they  were   published  may  be   considered 


»  Rodgers  v.  Kline,  56  Miss.  808; 
31  Ain.  Rup.  380. 

^  Steketee  v.  Kimm,  48  Mich.  322. 

*  Hinckley  v,  Grosjeau,  tt  Blackf. 
351. 

^Haukinsou  v.  Bilby,  16  Moes.  & 


W.  445;  Prime  v.  Eastwood,  45  Iowa, 
640. 

^  Foval  V.  Hallett,  10  111.  App.  265. 

«  Fawsett  ";.  Clark,  48  Md.  i'Ji;  30 
Am.  Rep.  481. 

^  Dixoa  V.  iStewart,  33  Iowa,  125. 


2207 


DEFAMATION   IN    GENERAL. 


§1241 


lastwood,  45  Iowa, 


by  the  jury  in  ascertaining  their  meaning  and  applica- 
tion to  the  plaintiff.'  In  an  action  of  libel  for  ambiguous 
or  ironical  words,  evidence  is  competent  to  show  the  ap- 
plication and  interpretation  put  on  the  words  by  the 
phiintifrs  acquaintances;  and  evidence  of  subsequent 
hostile  imblications  and  oral  declarations  is  admissible 
to  show  the  animus.^  But  where  the  libel  is  expressed  in 
ordinary  language,  witnesses  should  not  be  allowed  to 
testify  as  to  the  meaning  which  they  understood  the  libel 
to  convey,  or  that  they  understood  it  to  apply  to  the  plain- 
tiff an  offensive  term  found  in  the  article.^  All  parts  of 
the  libel  should  be  considered  together;  isolated  passages 
must  be  judged  of  in  connection  with  the  whole  publi- 
cation.* 

Illu'?tuatiok8.  —  In  an  action  of  slander  by  M.,  a  clerk  in 
the  stoit)  of  S.,  against  S.  and  wife  for  her  alleged  words  to  0., 
that  if  she  "  had  not  seen  the  shoes  on  O.'s  feet,  S.  would  never 
have  received  a  cent  for  them,"  meaning  that  M.  had  embez- 
zled the  shoes.  Held,  that  she  couM  not  be  permitted  to  testify 
that  she  only  meant  that  M.  had  forgotten  to  charge  the  shoes: 
Sternau  v.  Marx,  58  Ala.  608.  The  slanderous  words  charged 
were,  "You  have  cheated  and  robbed  orphan  children,"  but 
when  taken  in  connection  with  the  averment  and  innuendo  in 
the  complaint,  it  appeared  that  they  chfjrged  merely  that  the 
plaintiff  had  procured  the  assignment  of  a  mortgage  by  some 
fraud.  Held,  that  the  words  were  not  actionable  of  themselves, 
as  the  connection  showed  that  they  were  not  intended  to  im- 
pute the  crime  of  robbery:  Filher  v.  Dntitermann,  28  Wis.  134. 
The  words  alleged  and  proved  were:  "When  he  [the  plaintiff] 
was  highway  commissioner  he  stole  one  thousand  dollars  from 
the  town."  The  defendant  tried  to  show  that  he  referred  only 
to  the  fact  of  plaintiflF's  failure  to  produce  vouchers  for  tliat  sum 
in  accounting.  None  of  the  plaintifif 's  witnesses  testified  that 
the  defendant  explained  the  words,  and  only  one  that  he  under- 
stood them  to  relate  to  money  which  came  to  the  plaintiff's 
hands  as  commissioner.  Held,  that  the  ordinary  import  of  the 
words  imputed  larceny;  that  a  nonsuit  was  properly  refused: 


'Dowuingw.  Brown,  3  Col.  571. 
'Kuapp  V.  Fuller,  55  Vt.  311;  45 
Am.  Ri^p.  618. 
'Gribble  v.   Pioneer-Press  Co.,  37 

Minn.  277. 


♦  Hunt  V.  Algar,  6  Car.  &  P.  245; 
Chalmers  v.  Payne,  2  ("romp.  M.  & 
R.  156;  O'Connor  v.  Sill,  60  Mich. 
175. 


§1242 


SLANDER   AND  LIBEL. 


2208 


Hayes  v.  Ball,  72  N.  Y.  418.  Two  declarations  in  actions  of 
slander  against  different  persons  each  alleged  that  the  resppct- 
ive  defendants,  in  speaking  of  the  death  of  the  plaintiff's  wife, 
accused  him  of  the  crime  of  murder,  the  words  in  one  case 
being,  "He  killed  her  by  his  bad  conduct,  and  I  think  he  knows 
more  about  her  being  drowned  than  anybody  else;  he  is  to 
blame  for  it";  and  in  the  other  case,  "  He  knows  how  she  came 
to  her  death;  he  killed  her;  he  is  to  blame  for  her  death;  tliere 
was  foul  play  there."  Held,  on  demurrer,  that  the  former 
words  in  their  natural  sense  did  not  import  a  charge  of  murder, 
but  that  it  could  not  be  said  that  the  latter  words  might  not 
fairly  be  considered  to  impute  such  a  crime:  Thomas  v.  Bias- 
dale,  147  Mass.  438. 

§  1242.    The  Innuendo  —  The  Colloquium.  —  The  in. 

nuendo  is  a  statement  by  the  plaintiff  of  the  conptructiou 
which  he  puts  upon  the  words  himself,  and  which  he  will 
endeavour  to  induce  the  jury  to  adopt  at  the  trial.  Where 
the  words  prima  facie  are  not  actionable,  an  innuendo  is 
essential  to  the  action.  It  is  necessary  to  bring  out  the 
latent  injurious  meaning  of  the  defendant's  words;  and 
such  innuendo  must  distinctly  aver  that  the  words  bear  a 
specific  actionable  meaning.^  An  innuendo  may  not  in- 
troduce  new  matter,  or  enlarge  the  natural  meaning  of 
words.  It  must  not  put  upon  the  defendant's  words  a 
construction  which  they  will  not  bear.''  If  the  words  are 
incapable  of  the  meaning  ascribed  to  them  by  the  in- 
nuendo,  and  are  prima  facie  not  actionable,  the  declara- 


'  Odgers  on  Libel  and  Slander,  100; 
Rice  V.  Simmons,  2  Harr.  (Del.)  417; 
31  Am.  Dec.  760;  Beardsley  v.  Tappan, 
1  Blatchf.  588;  Patterson  v.  Edwards, 

7  lU.  720;  Hays  v.  Mitchell,  7  Blackf. 
117;  Caldwell  v.  Abbey,  Hardin,  529; 
Patt  Tson  V.  Wilkinson,  55  Me.  42; 
92  Am.  Dec.  568;  Dorsey  v.  Whipps, 

8  Gill,  457;  McCuenw.  Ludlum,  17  N. 
J.  L.  12;  Evans  v.  Tibbius,  2  Grant 
Cas.  451;  Gosling  v.  Morgan,  32  Pa. 
St.  273;  Herst  v.  Borbridge,  57  Pa. 
St.  62;  Taft  v.  Howard,  1  D.  Chip. 
275;  Nichols  v.  Packard,  16  Vt.  83; 
Cramer  v.  Noonan,  4  Wis.  231.  The 
innuendo  is  not  essential  under  the 
codes  of  some  of  the  states:  See  note 


to  Van  Vechten  v.  Hopkins  in  4  Am. 
Dec.  350,  351. 

*  Hayes  v.  Mitchell,  7  Blackf.  117;  j 
Emery  v.    Prescott,  &4  Me.  38!l;  Van  i 
Vechten  v.  Hopkins,  5  Johns.  '2U;i\ 
Am.    Dec.    339;    Brown  v.    Finer,  6 
Bush,  518;  Pattersons.  Wilkin-oii,  .55 
Me.  42;  92  Am.  Dec.  568;  Bourieseau 
V.   Detroit  etc.  Co.,    63  Mich.  «o;  fi 
Am.  St.  Rep.  320.   The  words  clurged 
were,  "  D.  killed  my  beef."     HuM, 
that  there  being  no   colloquium,  the  I 
words    not   necessarily  importing  aj 
felony,  they  could  not  be  extumltdiiil 
their  meaning  by  the  innuendo:  Hans- 
brough  V.  Stinnett,  25  Gratt.  4'J<3, 


2209 


DEFAMATION  m  GENERAL. 


)pkin8  in  4  Am. 


tion   will  be  held    1    ^ 

""■•'  «.■  tl.o  judge  thin?  thIT"r-'  ^''  '"'"•^™^'  the 
■»«a"ing  ascribed  to  hem  how"  ""  ""^^'^'^  <>'  "'« 
appear  that  tliey  were  in^\  ""probable  it  ,„av 

lr..o  meaning..    w,,ere  "^he  ll   ""''  l'  "'  '^  '■«'  ftoir 
KV  on  their  face,  no  inn„enrf„  "'  ""'"'"■^'y  ''^f'""*- 
'-"-«;  -11-known  import  a," l-rer'"'''    ^""«°^-«l 
""■"""does  to  explain  their  men!,/'  P''  "•  '"""out 
person  the  qualities  of  the  -fr^^'  ^'  f'  ^■'  ^Pu'ing  to  a 
"JuJas.".    Where  the  wrd    I      ;;"'%'  "'  ^"'""S  him 
«"  their  face,  „„  innuendo    ,.    ^       "  ^"'^  "rfomatory 
«'l  not  be  proved.«    An  i '!,";7'"^'^  "'"  '^  ^e'  «»t! 
,  -y  be  rejected  as  s^rptZTTf^  '^unnecessary,  and 

*«  writing  on  its  face  "Ss  to  »     '?"  °'"'"' «-''»« 
■-<!«  are  libelous  in  themsetes"  '"''"'"''■  ""<»  the 

Where  the  words   are  in  »  f      • 
technical  or  provincial  terms  an  i^'^"   '^nguage,  or  are 
pessary  to  disclose  an  actln^M  '"'"'^'"'°  ^^  absolutely 

""—do  is  essential  XXitrT^f  '°'  ""'•  - 
■»t  in  the  particular  in^  "'^"'^'V  English  words  are 
&.gh»h  sigufficat  ot  but  n  "r  ""'  '°  "'-^  -<"nary 
!•  «"y  of  a  woman  that '    h         '  P'""""  »«»««.'     Thus 

K^'^pped«pon^lrb,i  ^™:r^:''?,f''t^  some  on": 

t:  "■'"'''"'  special  averment  of  t, l      '    "  ""'  """''"■ 

f<^"own  to  be  actionable  by  dtttctT"'"^'  ""'  ""^ 

""'Plaint  that,  in  the  particular?!  ?   "^^^'ts  i„  tho 

"".  intent  to  convey  Teh  ™e  „    ff ""'''  '"""'^"^'^  "-<» 

hj  or  that,  in  th'e  loca",  t;  vhe    T   "  """  ""-«- 

hhadacquiredthatsense..i:et:HhTt":;r/:f™' 

;^'!gef8  on  Libel  and  Skn^       ,n,      ^^^  «  Am.  Doc  25W'  '^''^',  ^  Johns. 
-n;o.eau  ..  ieJroifctc  ^ '%    ^^^^^"d.  621?  ^''^'  ^'■°^^^"--  Weed. 


§1242 


BLANDEB  AND  LIBBL. 


2210 


tiff]  had  not  gone  away,  we  should  issue  warrants  for  him," 
is  susceptible  of  the  meaning  given  it  by  the  innuendo 
that  plaintiff  "  had  absconded,  and  had  been  guilty  of 
some  offense  for  which  he  was  liable  to  arrest."  *  A  charge 
that  "plaintiff  went  to  L.  and  collected  fourteen  hundred 
dollars  of  our  money,  and  went  West  with  it,"  will  bear 
the  innuendo  that  plaintiff  had  absconded  with  money 
belonging  to  defendant  and  his  associates  in  business. 
The  statement  that  plaintiff  is  trying  to  get  and  convert 
to  his  own  use  the  property  of  R.  without  paying  for  it 
may  be  properly  connected  with  an  innuendo  that  he  is 
attempting  to  defraud  R.  out  of  his  property.'' 

Wherever  the  defendants  words  are  capable  both  of  a 
harmless  and  an  injurious  meaning,  it  will  be  a  question 
for  the  jury  to  decide  which  meaning   the  hearers  or 
readers  would  on  the  occasion  in  question  have  reason. 
ably  given  to  the  words.     Here  an  innuendo  is  essential 
to  show  the  latent  injurious  meaning.'    Thus  the  words 
"  she  is  sick  "  cannot  be  shown  to  have  been  understood 
by  the  hearers  as  meaning  "  she  has  had  a  child,"  witii- 
out  proper  averments  that  they  were  so  understood,''   But 
where  the  words  can  bear  but  one  meaning,  and  tliat  if 
obviously  not  defamatory,  then  no  innuendo  or  other 
allegation  on  the  pleadings  can  make  the  words  defama- 
tory.®   The  assertion  that  plaintiff  **  has  left  town,"  tliough  | 
made  to  a  person  of  whom  plaintiff  had  purchased  goods 
on  credit  which  were  then  in  transitu,  is  not  capable  of  I 


'  Ayres  v.  Toulmin,  Mich.,  1889. 

*  Ayres  v.  Toulmin,  Mich.,  1889. 

*  Thompson  v.  Lusk,  2  Watts,  17; 
26  Am.  Dec.  91;  Miles  v.  Vanhorn, 
17  Ind.  245;  79  Am.  Dec.  477;  Have- 
meyer  v.  Fuller,  60  How.  Pr.  316. 
Wliere  a  plaintiff  sets  out  the  meaning 
of  words  not  libelous  per  se  by  an  in- 
nuendo, he  is  bound  by  such  construc- 
tion, and  must  prove  by  a  preponder- 
ance of  the  evidence  that  the  readers 
80  understood  them:  Johnston?;.  Mor- 
rison, Ariz.,  1889.     If  the  language 


used  is  not  in  itself  actionable,  tbe 
intent  with  which  it  was  used  is  to  be 
drawn   from  the  extraneous  facts  a  \ 
well.     If  the  language  is  used  ironi' 
cally,  enough  must  l>u  allep^ed  to  make  I 
it  80  appear:  Brown  v.  Burnett,  10  111  f 
App.  279. 

*  Smith  V.  Gaffard,  33  Ala.  1C8. 

*  Sheely    v.    Biggs,    2    Har.  &  J.  i 
364;  3  Am.  Dec.  552;  Coburn  r.  Har  [ 
wood,  Minor,    93;    12   Am.  Dec.  3' 
Brown  v.  Burnett,  10  111.  App.  1)79, 


2210 


2211 


DEFAMATION   IN   GENERAL. 


§  1242 


.tsforhira," 
e  innuendo 
m  guilty  of 
'  ^    A  charge 
sen  hundred 
t,"  will  bear 
with  money 
in  business. 
and  convert 
f)aying  for  it 
3o  that  be  is 

tble  both  of  a 
be  a  question 
tie  hearers  or 
L  have  reason- 
io  is  essential 
'hus  the  words 
pen  understood 
a  child,"  witii- 
aerstood.*   But 
12,  and  that  is 
lendo  or  other 
words  defama- 
town,"tbougli| 
urchased  goods 
not  capable  of 

tseU  actionable,  the 
a  it  was  used  is  to  be 
extraneous  facta  as 
iLTiage  is  used  itom- 
istbeallesecltomake 
,wnt».  Burnett,  10  lU.  I 

Fard,  33  Ala.  1G8 
>igg8,    2    Har.  kl\ 
r552;  Coburnj.Har; 

|3-    12  Am.  Dec.  >'< 
\i,  10  III.  App.  2T9. 


the  innuendo  that  plaintiff  had  absconded  and  given  up 
his  business,  and  was  insolvent.     Nor  is  the  statement 
that  pbiintiff  "has  obtained  commission  on  the  sale  of 
type-writers   without    giving    his   partners   any   benefit 
thereof"  made  actionable  by  the  innuendo  that  pluintifT 
hiul  been  guilty  of  defrauding  his  partners  as  a  member 
of  said  firm,  in  the  absence  of  any  allegation  that  ho  was 
under  obligation  to  share  the  profits  of  the  sales  wit.    his 
partners.^      Where  an   alleged    libel   charges    seduction, 
adultery,  ana  abortion  as  i)arts  of  a  continuous  transac- 
tion, the  plaintiff  cannot,  by  confining  the  innuendo  to 
a  juirtion,  limit  the  defendant's  right  to  justify  it  as  an 
entirety,  and  to  show  that  the  plaintiff  had  no  reputation 
that  could  have  been  injured  by  any  part  of  it."     An  in- 
nuendo cannot  be  aided  by  the  jncre  opinion  of  a  witness.' 
A  colloquium  shows  that  the  matter  alleged  defamatory 
applies  to  the  plaintiff  and  the  circumstances  under  which 
it  was  used.*     But  there  must  bo  a  suflicient  colloquium. 


'  Ayrcs  V.  Toulmiii,  Midi.,  18S!». 
2];'cll)iick  V.  Detroit  Co.,  50  Mich. 
C:",);  !.">  Am.  Hep.  G;i. 

'  l'ilt-il>iu-;;h  etc.  15.  R.  Co.  v.  Mc- 
Cnnly,  114  I'a.  St.  5u4;  GO  Am.  Rci). 
301). 

*  "  Ac()iii<quium  seems  to  showtliat 

i  the  wi>nl.s  Were  spoken  in  rct'erence  to 

tlic  iii.aier  of  tlio  avcniii-nt "  :    Van 

iVeclitiii  V.  )l(i|>kin>i,   5  .lolms.  211;  4 

i  Ain.  D.M-.  S:;'J;  llli,,ss  V.  T()l).;y.  '2  I'lek. 

I  S'.'S.     \\  lu  ru  th(!  woi'ds  <'(>iiipl;iineil  of 

(lurivu  tlii'ir  slarideroiis    iMi))<>rk   from 

extrinsic   fact.-i,  the  tlcelai-itidii    must 

aver  tlid-^o  factn,  and  eoiiiiect  tlieiii  l)y 

la  ccillcK^uiuin  witli    tlio    woi-d.s    laid: 

Liiivdlu  /'.  Earlywine,   4  Hi/iekf.  470; 

[Fiiwk'  r.  llohljius,  \2  Mass.  4'.KS;  JJloss 

If,  Tiihey,  '1  I'ick.  H'JG;  Carter   v.  Aa- 

jdrews,    IG   Pick.    1.     8cc   also   Cora- 

InionwLidtli   v.    Child,    13    i'lok.    l!tS; 

IC'imiiiioiiwealth  v.  Snclling,   15   Pick. 

|3''l;  N^ye  r.  Otis.  8  Mit.ss.  P22;  5  Am. 

JDoc.  7i»;  Tebbetts   v.  i\oA\\\'S„9  V,\:\v, 

|2J4;  Edgerly  v.  Swain,  V>>  N.  H.  47'8; 

'iiuiiey  i:  Nash,   3  N.  Y.  177;  Watts 

r.  Ureeideaf,   2  Dov.   115;  IJrowa    v. 

Browu,  14  Me.  317;  Harris  v.  Barley, 


8  N.  TT.  2r>7;  Staiih-y  v.  Brit,  Mart. 
&Y.  222;  Uy.in  t\  M'iddeii,  12  Vt.  51; 
.S:inilersoa  r.  Iluhhai'd.  14  Vt.  4G2; 
Carter  /'.  Amh-ews,  IG  I'iek.  G;  Sliaw, 
C.  J.,  saying:  "  If  tlie  \\.>rds  have  tlie 
slanderous  nicaiiiiii;  alUnod,  not  by 
tlii'ir  own  iiitriiisie  iiuei;,  hut  l)y 
reason  of  tlie  (.'Xisti  iiei;  of  some  extra- 
Mcims  fact,  the  plaiiiLilf  iiui^tnnder- 
t.iki!  to  )irov(!  tiiat  faet.  and  the 
dcifodint  must  ho  at  liheity  to 
dis|»riivi.  it.  'I'lit!  iai't  tiuMi  niu^t  he 
avci'ird  in  a  traA'crsalile  fiuin,  \\  irh  a 
]iriH)(r  colbMiuiinn,  lo  wit,  an  avc;i'nieat 
tint,  tlie  wonis  in  c|Uc'sii.in  ui;  spokeu 
of  and  eDUi-crnlnii  sucli  u^^il;'-  or  i('[)ort, 
or  filet,  whatever  it  is,  whnli  gives  to 
Words  ollnrwi.se  indilfer'ent  the  par- 
ticular defamatory  mi'aning  ini])uted 
to  tlieni.  'I'lien  the  word  'meaning' 
or  'innuendo'  is  used  with  great 
propri.i-y  and  etl'i-et  in  eonnecling  the 
malUrs  thus  introduced  hy  averments 
and  C'<tl«iitiii,  \Mlii  the  purticular 
Words  lilil,  showing  their  ideatily  and 
drawing  wii.it  is  now  the  legal  iiifer- 
cncu  fruui  the  whole  dcclaratiuu." 


§  1242 


SLANDER  AND   LIBEL. 


22n 


Thus  a  charge  that  the  defendant  said  of  the  phuntifT 
that  she  kept  a  "  bad  house,"  innuendo,  a  bawdy-house, 
will  not  do,  for  want  of  proper  colloquium,  i.  e.,  a  state- 
ment  of  the  circumstances  under  which  they  were  used, 
or  the  subject-matter  of  the  conversation,  so  that  it  can 
be  seen  that  the  words  were  used  in  the  sense  claimed  bv 
the  plaintiff.*  The  same  has  been  held  where  the  declara- 
tion charged  the  defendant  with  saying  of  the  plaiutilf 
"  she  is  a  bad  girl,"  innuendo,  a  prostitute,^  and  she  keeps 
a  "public  house,"  innuendo,  a  bawdy-house.^  The 
plaintiff  may  be  nonsuited  for  the  want  of  a  colloquium 
in  his  declaration  averring  that  he  is  the  person  alluded 
to  in  a  libelous  paper  so  ambiguous  that  from  a  mere 
perusal  of  it  the  person  intended  cannot  be  ascertained. 
An  innuendo  cannot  supply  the  place  of  such  colloquium.* 
But  where  words  charged  to  have  been  spoken  are  uii. 
equivocal,  and  convey  a  direct  imputation  of  crime,  and 
point  out  with  certainty  the  person  to  whom  they  are 
intended  to  apply,  no  colloquium  is  necessary.*  An  iufor- 
ence  expressed  in  the  colloquium  or  innuendo  in  a  com- 
plaint for  slander,  if  not  correct  from  the  words  alleged 
to  have  been  spoken,  cannot  affect  the  sufficiency  of  the 
averments  of  the  declaration.  This  is  on  the  ground 
that  a  declaration  in  slander  may  be  sufficient  without 
the  colloquium  or  innuendoes,  which  in  such  case  may 
be  regarded  as  surplusage.* 

Illustrations.  —  A  declaration  alleged  that  defendant  ppoko 
of  and  concerning  the  plaintiff:  "  '  He  [meaning  said  plaintiff] 
poisoned  my  cattle.  They  were  poisoned  with  Paris  green, 
They  were  poisoned  from  a  pail  that  had  bran  and  poison  in  it, 
and  V.  [meaning  said  plaintiff]  put  it  there';  thereby  meaning 
and  intending  to  charge  that  he,  the  i;aid  plaintiff,  committed 


'  Peterson  ik  Scntman,  37  Md.  140; 
11  Ain.  Rep.  534. 

■'  Siiell  V.  Snow,  13  Met.  278;  40 
Am.  Dec.  730. 

=»  Dodge  V.  Lacey,  2  Ind.  213. 

*  Wilson  V.  Hamilton,  9  Rich.  382. 


*  Thirmau  v.  Matthews,  1  Stew.  384;    Am.  Dec.  332. 


Hall  r.  Montgomery,  8  Al:i.  .'ilO; 
Rodebaugh  r.  HoUingswortli,  (>  Iiul. 
33i);  Croswell  v.  Weed,  20  Wdvl. 
021 ;  Walrath  v.  Nellis,  17  How.  Pr, 
72. 

Ausman  v.  Veal,  10  Ind.  om;  '1 


2213 


DEFAMATION  IN  GENERAL. 


§1243 


the  crime  of  willfully  and  maliciously  administering  poison  to 
the  cattle  of  him,  the  said  defendant,  .  .  .  .  wherehy  said  cattle 
wore  poisoned  and  killed."  Held,  that  the  innuendo  aided  the 
want  of  averment  of  the  statutory  elements  essential  to  tlie 
criint'  of  poisoning  cattle,  and  the  declaration  stated  a  cause  of 
action :  Vickers  v.  Stnneman,  Mich.,  1889.  A  declaration  averred 
that  plaintiff,  being  a  married  man,  had  a  hostler  in  his  employ 
who  was  also  married,  and  that  a  libelous  communi<!ation  by 
defendant  concerned  them  in  such  relation,  which  communica- 
tion was  sent  to  plaintiff's  wife,  and  was  as  follows:  "  Do  you 
know  that  the  name  of  the  hostler  and  yourself  are  coupled 
together,  ....  and  claimed  that  you  two  are  intimate  to- 
gather;  and  some  shake  their  heads  and  say  it  looks  strange  tliat 
he  should  exchange  with  his  hostler?  "  Held,  that  the  lan- 
guage quoted,  in  connection  with  the  facts  alleged  in  tlie 
preceding  averments  and  colloquium,  reasonably  imported  tliat 
plaintiff  had  been  criminally  intimate  with  his  hostler's  wife: 
Wilcox  v.  Moon,  Vt.,  1889. 


§  1243.  Certainty  as  to  Charge  —  Proof.  —  Where  the 
defamatory  words  are  alleged  to  charge  the  plaintiff  with 
a  crime,  though,  as  we  have  seen,  they  must  charge  him 
with  an  indictable  crime,  it  is  not  essential  that  the  crime 
should  be  expressly  charged;  it  is  sufficient  if  the  language 
used  imputes  the  commission  of  the  crime,  and  that  the 
hearers  should  so  understand  it.^  Defamation  may  be  in 
the  form  of  insinuation  as  well  as  of  positive  assertion, 
provided  the  meaning  is  plain.'*  The  precise  words  laid 
in  the  complaint  need  not  be  proved;  the  substance  is 
sufficient.'  But  this  is  held  to  mean,  in  some  states,  that 
though  it  will  not  defeat  the  action  if  more  words  or 


'  Oilgers  on  Libel  and  Slander,  120 
et  set], 

'  AJains  V.  Lawson,  17  Gratt.  250; 
94  Am.  Dec.  455. 

'  Hfci'sli  V.  Ringwalt,  3  Yeatea,  508;  2 
Am.  Dec,  392;  Hume  v.  Arrasmith,  1 
Bilil),  1  (;.");  4  Am.  Dec.  620;  Nye  v. 
Otis,  8  Mass.  121 ;  5  Am.  Dec.  79; 
Wheelrc.  Robb,  1  Blackf.  330;  12  Am. 
Det.  24.");  Estes  v.  Antrobus,  1  Mo. 
197;  K!  Am.  Dec.  496;  Cooper  v.  Mar- 
low,  3  Mo.  188;  Purple  v.  Hortoii,  13 
Whi.1.  '.);  27  Am.  Dec.  167;  Desmond 
I.  Brown,  29  Iowa,  53;  4  Am.  Rep. 


194.  The  plaintiff  must  prove  enough 
of  the  identical  words  laid  to  amount 
to  the  substance  of  the  charge:  Albin 
V.  Parks,  2  111.  App.  576.  Slanderous 
words  laid  as  spoken  affirmatively  are 
supported  by  proof  that  they  were 
spoken  in  answer  to  a  question:  Yeates 
V.  Reed,  4  Blackf.  463;  32  Am.  Deo. 
43.  But  proof  of  slanderous  words 
uttered  hypothetically  will  not  sus- 
tain an  averment  of  slanderous  worda 
uttered  ab.solutely:  Evarts  v.  Smith, 
19  Mich.  55. 


1243 


SLANDER  AND  LIBEL. 


2214 


fewer  words  are  proved  than  are  alleged,  yet  the  "  wot dg 
proved  must  be  substantially  the  same  words  charged  in 
the  petition, —  not  different  words  of  the  same  import. '" 
But  in  other  states  it  is  not  essential  that  the  exact  w-i'ls 
be  proved;  proof  of  words  of  the  same  sense  and  impdii  js 
sufficient.^  A  charge  that  defendant  said,  "  Antrobiis  tdnk 
or  stole  a  sufficient  quantity  of  corn  to  feed  two  hovsi  <  (uit 
of  my  crib;  he  is  a  thief,"  is  sustained  by  proof  tli;ii  do. 
fendantsaid  Antrobus  had  come  to  his  house  and  took  Iiis 
(defendant's)  corn  out  of  his  crib  and  fed  his  horses  uf 
nights,  and  would  not  open  his  bells  until  dofLiKlant 
had  gone  to  bed.''  A  charge  that  "the  plaintiff  had  a 
bastard  child"  is  sustained  by  proof  of  tlic  words  "if  I 
have  not  been  misinformed,  the  jiluintiff  had  a  bastard 
child."*  A  charge  that  the  defendant  called  phiitii ill' a 
"public  whore"  is  sustained  by  proof  of  the  wi>!ds 
"whorish  bitch."^   Proof  that  defendant  said  to  plaimill', 

1  Watson  V.  Musick,  2  Mo.  20;  18  Conn.  4(i4,  tlio  ooiirt  .st\  In:  "llij 
Bundy  v.  Hart,  40  Mo.  4(50;  2  Am.  l;iw  <lcifs  not  iv(|iiir.!  liLml  |ii,„,i nf 
Rep.  525;  Berry  v.  Drydon,  7  Mo.  the  wordts  iim  jjivi'u  in  i iui  li.  tin, c,:!! 
334;  Birch  v.  Benton,  ;W  Mo.  l.">:5;  hnt  «iidy  \)i-i«if  i>'\  words  ,>  \U,-  ..r,,> 
Whcelor  t'.  llobb,    1    Bliiekf.   'A'SO;     12     si-nso  :iiid  iin|>urt.     'J'li-;   witi:.    >•   ll 

Am.    Dec.  245;    Tucker    v.    Call,  45     mn,  Ik;  |.,'niiiLUvl,  to  j^ivi'  i,   iij^ 

Ind.  31 ;    Sauford   ?'.    (laddi.-i,    I.")  111.     fou-ii  r'liiiioii  of  iIkj  lui'n.iur  n     i.  .,r 

228;    Bakor  r.  Youii;:,   44  111.   4-.;;    1)2    th.>  rn|)r.'^>i..n  wlii.-li  tli.- ,  ,,,n, ,.       :i 

Am.   Dec.  149;  Wdliiiins  v.    Odijl,    IM)     mi.lo   ii|i<iii    hi-,   niind,    MiiM..Mi   "ivmf 

111.  150;  Smith  v.  Miles,    15  Vt.  245; 

Smith  r.  liollister,  32  Vt.  0'.).'.:  Il>.iu.ii 

V.    Keiives,  2    Miirpii.   2Ni>;   'r.ishir  v. 

MoiMn,    1  Mot.  (K_,.)    114;  (H.'.i  lead 

V.    .MUlcr,   ]    Wend.   5()0;  ( 'inii'iKiiii  r. 

Wallers,    I    Port.   Ml;    'j;   Au.    1  »e<'. 

CI>5;  ^lul:u^d)  *'.  Ku^kemhill,  I   Scim. 

187;    27    A'.n.    Dec.    701;    Suord    v. 

M.u-tin,  2;j  111.  A|)ji.   304;    iir.,oU  v. 

Duteher,  22  Nel).  044. 

-  ller.^h  r.  Uingw.ilt,  3  Yoato.'^,  508;     to    n  ...!!•  ,  i, 
2  Am.    |)ec.  3!)2;   lliiino  «'.  Arr:i-inii  ii,     by  amiui'  i-, 

1  Bd»l),  105;  4  Am.  1  )>■>!.  020;  l;dd\\iii  !).•  l)  (ici'e  it  ri  eoveii' -■  ni  a'-:  i-  .if 
V.  Soide,  0(!i'ay  :)2I ;  PayMin  c.  .\|  tr;iia-  verh.d  bl.uulL'i-  in  almo.'st  e\<';.  m- 
bur,  .'>  Allen,  0'.>;   UnMnns  /•.  KU  leiiei-,     Stan  '>." 

101  Ma.s.s.  115;  Chace  -;.  «liefmaii,  111)        "i'.oies  v.  Antrobus,    1  ^lo.  r.l7:  13 
Ma.sti.    387;     De.smoud  r.    i\n>\\\\.  29    Am.  I>ei'.  -lOo. 
Iowa,  53;   4  Am.  Hep.   191;    .Mr(  !in-        ■•  Ti-cat .-.  Browning,  4  Conn.  40S; 
tock  v.  Crick,  4  lowa,  45.};  l}a>,(  lu  v.     10  Am.  Dee.  150. 
Spurt'ord,   11    N.   11.   127;    SLovcns  v.         "  ZimiiuTmaii  r.  MeMakin,  22  S.  C, 
Handly,  Wright,  123;  Wilson  /•.  linn-    372;  53  Ani.  lieiJ.  720. 
yon,  Wright,  C51;  VVilliams  v.  Min, 


tiie  (  iiriM  rsiiiiiin  ilsi  il'.    He  im. 
til"    1      luna    e    i;-i)cl     in      il.-i     I    ■  1 
V.  I'l  h    I    le     Mini.      I.    <ll'     thi'    eiiii    •■ 
!i  ^  il'-!i'   a>    Mi:    (MM    reenlli'r!      i. 
lis     e.i  M     Met     ililler    ill     lis    ■ 
nil'  iiI'M  ■■     I  ■'  nil    the     Words    ,ili. 
t'  -^    di    '..1  •    ■  ..  III.    tlioli'^ii    II    III', 
ferijis  ui    e     |iri- -sioii.  It  Will  ■  ii:li 
supp'ii'l  III'     .1 '  niii  lit,.     '1  in M- 
iii'^  iiiori'  I i.iiii,  li It   mm    lor  ;i  • 
,  M,'  ('■;..   L  hill  .11  ,'j 
a. HI  III  renuiii'  I  :!i 


,•1  M    U 
l-,l 

.„,  ;,n 

I'D 

■■■    )' 


2215 


DEFAMATION  IN  GENERAL. 


§1244 


"Are  yon  not  afraid,  as  you  have  perjured  yourself," 
sustains  an  allegation  that  the  former  said  of  the  latter, 
"You  are  perjured."  '  A  general  count  in  a  declaration 
as  charging  the  plaintiff  with  "stealing  "  is  good.''  It  is 
not  necessary  that  the  slanderous  words  be  shown  to  have 
been  spoken  on  the  precise  day  alleged  in  the  complaint.^ 

Illustrations.  —  A  passenger-railroad  company  published 
that  a  conductor  was  discharged  for  "  failing  to  ring  up  all 
fares  collected."  Held,  not  necessarily  to  import  a  charge  of 
embezzlement:  Pittsburgh  etc.  R.  R.  Co.  v.  McCurdy,  114  Pa.  St. 
554;  60  Am.  Rep.  363.  One  published  of  another  that  ho  dis- 
graced an  office  which  he  had  filled;  that  he  had  been  accused 
of  horse-stealing,  had  sued  his  accusers,  and  the  defendants 
had  a  verdict.  Held,  that  this  imputed  the  crime  of  grand  lar- 
ceny: Johnson  v.  St.  Louis  Dispatch  Co.,  65  Mo.  539:  27  Am. 
Rep.  293. 

§  1244.  Certainty  as  to  Person  Defamed  —Who 
may  Sue.  —  The  defamatory  words  must  refer  to  some  as- 
certained or  ascertainable  person,  and  that  person  must  be 
the  plaintiff.  A  slander  on  a  class  will  not  give  a  right 
of  action  to  any  member  of  that  class  who  will  bring  tho 
suit.*  "  If  a  man  wrote  that  all  lawyers  were  thieves,  no 
particular  lawyer  could  sue  him,  unless  there  is  something 
to  point  to  the  particular  individual.'"  So  where  the 
defendant  said  to  a  master,  "  One  of  thy  servants  hath 
robbed  me,"  it  was  held  that  in  the  absence  of  special 
circumstances  no  one  could  sue;  for  it  was  not  apparent 
who  was  the  person  slandered.  So  where  a  party  in  a 
cause  said  to  three  men  who  had  just  given  evidence 
against  him,  '  One  of  you  three  is  perjured,"  no  action 
hiy.*  To  assert  that  an  acceptance  is  a  forgery  is  no  libel 
on  the  drawer,  unless  it  somehow  appear  that  it  was  he 


'  Commons  v.  Walters,  1  Port.  377; 
27  Am.  Dec.  635. 

'  Nye  V.  Otis,  8  Mass.  121;  H  Am. 
Dec.  79.  Contra,  Parsons  v.  Bellows, 
6N.  H.  289;  25  Am.  Dec.  461. 

*  Norris  v.  Elliott,  39  Cal.  72. 


*  Sumner  v.   Buel,    12  Johns.  475; 
White  V.  Delavan,  17  Wend.  50. 

'  Eastwood  V.  Holmes,  1  Fost.  &  F. 
349;  Solomon  v.  Lawson,  8  Q.  B.  837. 

*  Sir  John  Bourn's  Case,  cited  Cro. 
Eliz.  497. 


§  1214 


SLANDER   AND   LIBEL. 


2216 


who  was  chargGfl  with  forging  it,*  or  to  say  of  the  plaintiff 
"  that  he  or  somchody  had  altered  the  credit  or  indoise- 
iTient  on  a  note  from  a  larger  to  a  less  sum,  and  that  tlio 
note  would  speak  for  itself."^  So  slander  does  not  Ho 
against  one  whose  name  is  signed  as  surety  to  a  note  deny. 
ing  the  signature  and  the  authority  of  an  agent  to  sign  the 
note.''  An  action  for  libel  brought  jointly  by  the  mom- 
bers  of  a  hose  company  for  a  newspaper  article  cluirgincr 
that  members  of  the  company,  without  specifying  indi. 
viduals,  had  committed  a  theft,  the  members  not  being 
partners,  nor  being  so  situated  that  the  charge  could  oc- 
casion them  pecuniary  damage  as  a  company,  cannot  be 
maintained.  Nor  can  defendants  be  put  to  their  defense 
and  compelled  to  disclose  to  whom  the  libel  referred.^  But 
though  the  words  used  appear  only  to  apply  to  a  class  of 
individual?.,  and  not  to  be  specially  defamatory  of  any 
particular  member  of  that  class,  still  an  action  may  be 
maintained  by  any  one  individual  of  that  class  who  can 
satisfy  the  jury  that  the  words  referred  especially  to  him- 
self.^ If  the  application  to  a  particular  individual  can  be 
generally  perceived,  the  publication  is  a  libel  on  liim, 
however  general  its  language  may  be.®  The  words  "  your 
boys  have  stolen  my  corn,"  spoken  to  a  father,  were 
held  actionable  per  se  in  a  suit  brought  by  one  of  the 
boys.'  So  if  the  words  spoken  or  written,  though  phiin 
in  themselves,  apply  equally  well  to  more  persons  tlian 
one,  evidence  may  be  given  both  of  the  cause  and 
occasion   of  publication,   and    of    all   the    surrounding 


'  Stocklev  V.  Clement,  4  Bing.  1G2; 
12  Moore,  37G. 

■'  Ingalls  V.  Allen,  1  111.  23.3. 

'  AndrewsiJ.  VVoodmansee,  15  Wend. 
232. 

*  Giraud  v.  Beach,  3  E.  D.  Smith, 
837. 

*  Odgers  on  Libel  and  Slander,  129. 
«  WiVkely  V.  Healey,  7  Com.  B.  591; 

LeFanu  v.  Malcomson,  1 H.  L.  Cas.637; 
llyokman  v.  Delavan,  25  Wend.  186. 
"Whether   a  man  is  called   by  one 


name,  or  whether  he  is  called  Ijv  an- 
other, or  whether  he  is  dcscri'iod  by 
a  pretended  description  of  a  cl;ii  to 
which  he  is  known  to  belong,  if  tliose 
who  look  on  know  well  who  is  aimed 
at,  the  very  same  injury  is  intlicted, 
the  very  same  thing  is  in  fact  ilouo,  as 
would  bo  done  if  his  name  and  i  hris- 
tiau  name  were  ten  times  r^'iieutvid": 
Lord  Campbell,  C.  J.,  in  L'*  I'auu 
V.  Malcomson,  1  H.  L.  Caa.  d'M. 
'  Maybee  v.  Fiak,  42  Barb.  a2(5. 


2217 


DEFAMATION   IN   GENERAL. 


§1244 


Circumstances  affecting  the  relation  between  the  parties, 
and  also  of  any  statement  or  declaration  made  by  the 
dolcudant    as   to   the    person    referred   to.      The    j)lain- 
tiff  may  also  call  at   the  trial   his    friends  or  those  ac- 
quainted with  the  circumstances  to  state  that  on  reading 
the  hbcl  they  at  once   concluded  that  it  was  aimed  at 
the  plaintiff.'     So  where  the  plaintiff  is  referred  to  by 
initials  or  even  by  asterisks,  it  is  sufficient  if  those  who 
kneu'  the  plaintiff  understood  him  to  have  been  meant « 
So  a  publication  which,  without  naming  any   one,  so 
refers  to  certain  persons   that  it  is  clear  that  they  are 
intended,  may  be  libelous  as  to  them.«    So  one  may  bring 
an  action  for  a  libel  on  "A  and  his  friend,"  and  show 
that  the  words  "  his  friend "  meant  the  plaintiff.*     So 
the  words  "  those  people  upstairs  keep  a  whore-house  '' 
give  a  cause  of  action  to  one  showing  herself  to  be  one 
of  "those  people  upstairs."  =     lu  an  action  for  a  libel  in 
winch  the  name  of  the  plaintiff  is  not  mentioned,  a  sub- 
sequent publication  by  the  defendant,  in  which  the  plain- 
tiff's name  is  mentioned,  may  be  introduced  in  evidence 
to  show  that  the  former  publication  referred  to  the  plain- 
tiff.«  So  a  person  might  be  indirectly  defamed.  To  charge 
a  man  with  being  a  "cuckold"  would,  it  seems,  give  a 
riglit  of  action  to  his  wife  in  a  jurisdiction  where  an  impu- 
tation  of  want  of  chastity  in  a  woman  was  actionable^ 


'Bourke  v.  Warren.  2  Car.    &   P.     v.  Hopkins,  5  Johns.  211;  4   \in  Dec 

7-28;Snart   ..  BknSl/42  N     U.     ?*^!^' ^^""S^'^'' "•   ^^"'""-L  ^7   Pa.   St. 
1.^/;   Mix   V.    Woodward,     12    Conn 
202;  .Siuawley  v.    Stark,   9  Ind.   386; 


i.m 


Goodrich  r.  Davis,  11  Mot.  484;  Mil- 
ler r  Butler,  0  Cush.  71;  52  Am.  Dec. 
i^y,  Luonurd  V.  Allen,  11  Cush.  271; 
kelson  r.  ]3orclienius,  52  111.  230;  Mc- 
iaiisrlilm    „.    Russell,  17  Oiiio,    475; 

Mori'nl"'  "t  >X'«e'fr,  1  Saeed,  458;  ...  v  icars  v.  vv  orth.  I  Strange  471  • 

mS  V  F^?^'^'^  l.^t  S3'  ^^'rv-  ^°^if*'  \^  -.s;^.'^; 

Hawks  r  Pattmi    18  P  .    ko  ^ri  a     '  f,    ^^S  '«'» J^se  the  <lufendanfc  said  to 

hue    •  fiii.   p        'n       ^^\^''  ^^  ^"'-  *''°  plaintiff  s  wife,  "  You  are  a  nui- 

elT-lfi'      T?''"J^  ^^"^'   ^  ^^^-  «''^»'=^   *'^  li^«   I^esido  of.     You  a"e  a 

Wll  nL  ^  \v     J   o„^"'C^'  <^il^son  V.  than  a  bawdy-house."    It   was   held 

Wilhams,  4  Wend.  330;  Van  Vechteu  that  the  plaiutiff  could  Uaintaia  the 


■*  Bourke  v.  Warren,  2  Car.  &  P.  307 
*  Ryer  v.  Journal  Co.,  11  Daly,  25]' 
« Clark  V.    Creitzburg,   4    MoCord. 
491. 

'  Cookv.  Rief,  52  N.Y.  Sup.  Ct.  30" 
"Russell  V.  Kelly,   44  Cal.  C41:  13 
Am.  Rep.  1G9. 

'  See  Vicars  w.  Worth,  1  Strange,  471; 


81244 


BLANDER  AND  tIBBt. 


221S 


Illtistkations.  —  Tho  defendant  said  to  his  companion,  H., 
"  Ho  that  gOi^h  before  thee  is  perjured."  Held,  tlmt  tho  jjlain- 
tiif  can  sue,  if  ho  aver  and  prove  that  ho  was  at  that  inoim nt 
walking  before  B.:  Aish  v.  Gerish,  1  Roll.  Abr.  81.  A  IIImI  wim 
published  on  a  "diabolical  character,"  who,  "like  Polyphciims, 
the  nian-eatcr,  has  but  one  eye,  and  is  well  known  to  all  p.  r- 
sons  acquainted  with  the  name  of  a  certain  noble  circuninuvi. 
gator."  Tho  plaintiff  had  but  one  eyo,  and  his  nanio  mis 
I'Anson.  Held,  that  it  was  clear  that  he  was  tho  person 
roferrod  to:  rAnaon  v.  Stuart,  1  Term  Rep.  748;  2  Hmiiirs 
Lead.  Cas.,  Gth  ed.,  57.  A  newspaper  article  pronounced  tlie 
verdict  of  a  jury  to  be  "  infamous,"  and  added  that "  wo  cannot 
express  the  contempt  which  should  be  felt  for  these  twelve  men 
who  have  thus  not  only  ofi'ended  public  opinion,  but  have  dono 
injustice  to  their  own  oaths."  Held,  that  an  action  of  libel  might 
bo  maintained  by  a  member  gf  the  jury  against  the  publishor: 
Byera  v.  Martin,  2  Col.  605;  25  Am.  Rep.  755.  Two  persons 
were  charged  in  a  bill  in  equity  as  having  fraudulently  altcnd 
certain  instruments,  without  specifying  the  person  who  did  it, 
Held,  that  either  of  the  parties  charged  might  sue:  Forlwx  v. 
Johnson,  11  B.  Mon.  48.  An  action  was  brought  by  Louis 
Fleischmann,  a  baker  and  restaurant-keeper  in  Now  York 
City,  against  a  newspaper  proprietor  for  libel.  Tho  complaint 
alleged  the  defamatory  matter  to  be  an  article  relating  to  tiio 
Bwill-milk  business  carried  on  by  Gaft',  Fleischmann,  tt  Co. 
in  Queens  County,  and  did  not  refer  to  the  plaintiff  by  iiaino 
or  description,  nor  to  his  restaurant.  Held,  that  a  demurrer  to 
tho  complaint  should  be  sustained:  Fleischmann  v.  Jknnril,  23 
Hun,  200.  The  defendant  in  a  speech  commented  sevonly  on 
tho  discipline  of  the  Roman  Catholic  Church,  and  the  degrading 
punishments  imposed  on  penitents.  He  read  from  a  paj)!  r  an 
account  given  by  three  policemen  of  the  severe  penance  inijiosiMl 
on  a  poor  Irishman.  It  appeared  incidentally  from  this  n  port 
that  the  Irishman  had  told  the  policemen  that  his  priest  wouid 
not  administer  tho  sacrament  to  him  till  the  penance  was  jxr- 
formed.  The  plaintiff  averred  that  he  was  tho  Irishman's 
priest,  but  it  did  not  appear  how  enjoining  such  a  penance  on 
an  Irishman  would  affect  the  character  of  a  Rom:ui  (     '  ' 


action  without  joining  his  wife,  and 
without  proving  special  damage;  be- 
cause if  m  fact  his  wife  did  keep  a 
bawdy-house,  the  plaintiflF  could  be  in- 
dicted for  it ":  Iluckle  v.  Reynolds, 
7  Com.  B.,  N.  S.,  114.  Courts  will 
not  allow  two  persons  to  litigate  a 
suit  for  libel,  tlie  libel  consisting  in 
an  attack  upon  the  chastity  of  a  third 
person   not   a   party:    Loughead   v. 


Bartholomew 
words    "all 
showed  was 
sisters"  will  i 
slander  by  one 


^ut,       90.    Tli« 
ravery    \im  ( 
sleeping    witli 
support  m  acticiii  lor 
III  the  Miinarrieil  sis- 


ters of  tho  person  to  v  .oni  tlioy  wcrs 
addressed,  without  proof  )(  extrinsic 
facts  to  show  that  the  Bpeakcr  meiiit 
to  charge  sexual  intercourse  with  siuh 
sisters:  Millison  v.  Sutton,  1  lud.  508. 


2219 


DEFAMATION  IN  GENERAL. 


§1244 


ipanion,  B., 
it  iho  ])liun- 
lut  inoimnt 
A  libi'l  \V!id 
'olypli'Muus, 
I  to  all  \)i'T- 
circuiumivi- 
3  nanu!  was 
the   person 
i;    2  Sniitli's 
mounced  the 
t"  we  caiuiot 
0  twelvo  men 
ut  have  dono 
)f  libel  niii^ht 
ho  puV)Ushcr: 
Two  persons 
lently  iiltiM-cil 
311  who  (lid  it. 
me:  Forhcx  v. 
ght  by  Louia 
n   New  York 
rho  coini)Uunt 
elating  to  tho 
;imanii,  &  Co. 
ntiff  by  nauio 
a  dcnuirrer  to 
V.  Jknnrit,  23 
d  severely  on 
the  degrailiiig 
m  a  piiper  an 
jnance  iniito^ed 
■oni  tins  Yv\Mi 
is  priest  wouM 
nance  was  per- 
Ihe  IrishiiKin's 
\  a  penaixT  oa 
,on^'in  i 


priest.    Tho  alleged  libol  was  in  no  other  way  connocttul  with 
the  plaintifl'.    Ifeld,  no  libel,  and  no  slander  of  plaintiH':  llcnrnc 
V.  Hlimell,  12  Ad.  &  E.  719;  (i  Jur.  458;  4  Perry  Jk  1).  (5i)G.    Tho 
declaration  in  an  action  for  libel  alleged  in  tlxi  first  count  that 
tlio  defendant  falsely  and  maliciously  accused  tbo  plaintiff  of 
conspiring  with  P.  to  defraud  tho  neigiibors  and  friends  of  tho 
phiintiff  and  P.;  and  that  the  defendant  caused  said  false  and 
malicious  libel  to  bo  published  in  a  certain  newspaper,  as  fol- 
lows: "As  to  the  E.  company,  I  doubt  not  all  are  willing  that 
it  should  pay  a  fair  dividend,  six  per  cent,  oven  ten  per  cent, 
on  the  actual  value  of  tho  plant.     Hero  comes  the  rub;  when 
the  N.  company  was  capitalized  for  forty  thousand  dollars,  its 
actual  value  was  not  fifteen  thousand  dollars.     It  was  a  plan 
for  the  T.  company  to  make  a  good  sale,  as  no  profit  could 
bo  made  with  tho  sharp,  bitter  competition  of  tho  8.  company 
in  the  field,  and  it  was  a  scheme  by  which  certain   parties 
[meaning  tho  plaintiff  and  said  P.]  attempted  to  make  twenty 
thousand  dollars  or  more  by  buying  a  property  worth  in  tho 
neighborhood  of  fifteen  thousand  dollars  and  capitalizing  it  for 
forty  thousand  dollars,  and  by  selling  stock  to  their  neighbors 
and  friends  [moaning  tho  neighbors  and  friends  of  the  plaintifT 
and  said  P.]  which  was  more  than  half  water  [meaning  that  more 
than  half  of  the  par  value  of  said  stock  represented  no  assets, 
and  was  of  no  real  value].     In  fact,  tho  T.  plant  at  the  time  it 
was  sold  and  capitalized   for  forty  thousand  dollars  was  not 
worth  near  fifteen  thousand  dollars,  as  a  large  sacrifice  had  to 
be  made,  and  was  made,  by  the  projectors  [meaning  tho  plain- 
tiff and  said  P.],  who  dare  not  force  the  loss  of  removing  the  S. 
competition  on  the  stockholders  after  making  ono  hundred  per 
cent  and  more  on  the  stock  sold."     Tho  second  count  alleged 
that  the  plaintiff  was  engaged  in  l)usiness  in  tho  city  in  which 
the  newspaper  was  published;  and  that  tho  defendant  caused 
to  be  published  in  said  newspaper  "  a  false  and  malicious  libel 
concerning  tho  plaintiff,  whereby  the  plai'^itiif  was  greatly  in- 
jured in  his  trade,  business,  and  employment  ";  and  set  out  tho 
publication  annexed  to  the  first  count.    Held,  on  demurrer,  that 
the  declaration  was  insuflicient,  in  failing  to  apply  the  alleged 
libelous  words  to  the  plaintiff,  or  to  show  in  what  sense  they 
were  used:  McCallum  v.  Lamble,  145  Mass.  234. 


§1245 


BLANDER  AND   LIBEL. 


2220 


CHAPTER  LXV. 


SLANDER. 


81245.  Slander  in  general. 

§  1246.  Words  imputing  indictable  offerise. 

§  1247.  Words  imputing  contagious  disease. 

g  1248.  Slander  in  one's  calling  or  office. 

§  1249.  Office  or  calliug  may  be  of  any  kind. 

§  1250.  Illegal  occupations. 

§  1251.  Past  holding  or  pursuit  insufficient. 

§  1252.  Words  actionable  wheve  calliug  or  office  is  slandered. 

§  1253.  In  general. 

§  1254.  Attorneys. 

§  1255.  Clergymen. 

§  1256.  Mechanics  and  workmen. 

§1257.  Merchants  and  traders. 

§1258,  Officers. 

§  1259.  Physicians  and  surgeons. 

§  1260.  Aider  where  only  general  reputation  is  attacked. 

§  1261.  Act  referred  to  must  be  of  or  incident  to  plaintiff's  calliug. 

§  1262.  And  must  be  applied  thereto. 

§  1263.  Cliarge  as  to  particular  transaction  not  actionable  —  Exceptions. 

§  1264.  Comparisons  as  to  merits  not  actionable. 

§  1265.  Other  words  not  actionable  except  in  case  of  special  damage. 

§  1245.  Slander  —  In  General.  —  Slander,  i.  e,,  oral 
defalcation,  is  actionable  in  three  cases  only,  unless  special 
damage  is  i)rove(l.*     The  three  cases  in  which  a  tilandor  is 


*  The  rcajdua  that  the  law  distin- 
guiijlie-5  1> 'Lwecii  fjlaiidurous  words 
and  written  dcfaMiation  are  summed 
up  by  an  English  author  as  follows; 
"  Vox  c'liUi-i  I'oliil:  lUcrii  /irripca  matwi. 
The  w  ritten  or  printed  matter  is 
permanent,  and  no  one  can  tell  into 
who.se  IkuuI  it  may  come.  Every 
one  now  e;in  read.  Tlie  circulation 
of  a  iievv.s[):iper  'm  enormous,  especial- 
ly if  it  1)0  known  to  contain  libelous 
mattei-.  An^l  even  a  private  letter 
may  turn  up  in  after  years,  and 
reauli  pcrs,oni  far  whom  it  was  never 
inten'L'd,  and  so  do  incalculable 
iniscliief.  Whereas  a  slander  only 
reaches  tlie  iuimediate  by-standers, 
who    can  observe    the    manner   and 


note  the  tone  of  the  speaker,  —  v  iu 
have  heard  the  antecedent  conversa- 
tion, which  may  greatly  qualify  his  as- 
sertion,—  who  probably  are  acijiiaiiitccl 
witii  the  speaker,  and  kn<iw  Mliat 
value  is  to  be  attached  to  any  cliarge 
male  by  him;  the  mischief  is  'Ims 
much  less  in  extent,  and  tlic  pul'licity 
less  durable.  2.  A  sla'i'lcr  i'i;iy  lie 
uttered  in  the  heat  of  a  taoineiit,  mv\ 
under  a  sudden  provoeution;  the  re- 
duction into  writing  and  the  yniblica- 
tion  of  a  libel  show  greater  dtlibera- 
tion  and  malice.  3.  A  third  reason  is 
sometimes  given,  that  a  libel  is  more 
likely  to  lead  to  a  breach  of  tlie  poaoe. 
But  I  doubt  if  this  is  so.  A  niui 
Tould  be  more  tempted  to  perbonally 


2221 


SLANDER. 


§1246 


actionable  per  se,  i.  e.yin  which  from  the  mere  utterance  of 
the  words  the  court  will  presume  some  damage  to  have  been 
sufrered  by  the  plaintiff,  arc:  1.  Where  the  words  charge 
the  plaintiff  with  the  commission  of  some  indictable  of- 
fense" or  2.  Impute  to  him  a  contagious  or  infectious 
disease  tending  to  exclude  him  from  society;  or  3.  Are 
snoken  of  him  in  the  way  of  his  office,  profession,  or  trade. 
Ill  no  other  case  are  spoken  words  defamatory,  unless  they 
have  caused  some  special  damage  to  the  plaintiff. 

§  1246.  Words  Imputing  Indictable  Offense. —  Spoken 
words,  which  impute  that  the  plaintiff  has  been  guilty  of 
ail  indictable  offense  involving  moral  turpitude  or  sub- 
jecting him  to  an  infamous  punishment  are  actionable 
without  proof  of  special  damage.* 


chastise  a  villain  who  slandered  him 
to  his  face  than  a  libeler  who  lam- 
pooned liiin  in  the  papers.  Even  if  it 
were  so,  it  would  tend  to  explain  why 
libel,  is  a  crime  and  slander  not, 
rather  than  to  account  for  the  distinc- 
tion just  pointed  out  between  the 
evidence  required  in  the  respective 
civil  actions.  For  this  is  a  further 
important  diflerence  between  slander 
and  libel:  that  for  every  libel  crim- 
inal proceodings  may  be  taken  byway 
oi  information  or  indictment,  if  the 
person  defamed  does  not  desire  dam- 
ages; whereas  a  slander,  unless  it  be 
bla<pheuioiis,  seditious,  or  obscene,  is 
not  criminal  at  all  ":  Odgers  on  Libv ' 
anil  Slander,  3. 

■Pollard  V.  Lyon,  91  U.  S.  225 
Brooker  t.  Coffin,  5  Johns.  188;  4  Am. 
Dec.  ?Mr,  Anonymous,  60  N.  Y.  2(53; 
19  Am.  Rep.  17-t;  Miller  v.  Parrish,  8 
Pick.  SS4;  McCuen  v.  Ludlum,  17  N. 
J.  L.  12;  Johnson  v.  Shields,  25  N.  J. 
L.  lilt;  Gosling  v.  Morgan,  32  Pa.  St. 
".:,];  Klumph  v.  Dunn,  66  Pa.  St.  141; 
5  Am.  Ro]).  355;  Perdue  v.  Burnett, 
Minor,  1I>8;  Montgomery  v.  Deeley, 
3Wii,  709;  Stitzell  v.  Reynolds,  07 
Pa.  St.  51;  56  Am.  Rep,  390;  Hoag  v. 
Hatch,  23  Conn.  585;  Ranger  v.  Good- 
rich, 17  Wis.  80;  r'ilber  «.  Dautermann, 
'J(i  Wis.  .^18;  UoUingsworth  v.  Shaw, 
19  Oliio  St.   430;    2  Am.    Rep.  41  Ij 


Davis  V.  Brown,  27  Ohio  St.  326; 
Young  V.  Miller,  3  Hill,  21;  Martin  v. 
Stillwell,  13  Johns.  275;  7  Am.  Dec. 
374;  Widrig  v.  Oyer,  13  Johns.  124; 
Case  V.  Buckley,  15  Wend.  327;  Bissell 
V.  Cornell,  24  Wend.  354;  Crawford 
V.  Wilson,  4  Barb.  504;  Hillhouse  v. 
Peck,  2  Stew.  &  P.  3'J5;  Johnston  v. 
Morrow,  9  Port.  525;  Dudley  ?•.  Horn, 
21  Ala.  379;  Heath  r.  Dcvaughn,  37 
Ala.  677;  Berdeau:.  ?■.  Davis,  58  Ala. 
611;  Giddens  v.  Mirk,  4  Ga.  304; 
Taylor  v,  Kneeland,  1  Doug.  (Mich.) 
OS;  Gage  v.  Shelton,  3  Rioh.  242; 
Burton  v.  Burton,  3  G.  Greene,  310; 
Brite  v.  Gill,  2  T.  B  Mon.  Co;  15  Am. 
Dec.  122;  Demarest  r.  llaring,  0  Cow. 
70;  McKee  v.  Wilson,  87  N.  C.  .300; 
Page  V.  Merwin,  54  Conn.  420.  By 
"  infamous  punishment  "  in  this  con- 
nection does  not  mean  a  punishment 
which  subjects  the  criminal  after  he 
has  served  it  out  to  permanent  civil 
di.sabilitiea  as  is  the  ordinary  meaning: 
See  Bouv.  Diet.  In  this  section  it 
means  corporal  punishment,  e.  g.,  im- 
prisonment, and  this  either  in  the 
penitentiary  or  in  a  common  jail 
or  house  of  corection:  Wilcox  v,  Ed- 
wards, 5  Blackf.  183;  Rammel  v.  Otis, 
60  Mo.  305;  Bush  r.  Benton,  20  Mo. 
153;  Billings  /-.  Wing,  7  Vt.  439; 
Gridin  v.  Moore,  43  Md.  240;  Elliot «. 
Ashbury,  2  Bibb,  473;  5  Am.  Dec.  631. 


§1246 


SLAilDER  AND   LIBEL. 


2222 


This  principle  is  maintained  by  a  great  majority  of 
the  decisions,  though  in  some  cases  it  has  not  been  ad- 
hered to.  Thus  in  Yv»rmont  it  lias  been  held  that,  in 
order  to  render  the  charge  actionable  per  se,  the  act  im- 
puted shall  not  only  be  subject  to  an  infamous  punish- 
ment, but  also  involve  moral  turpitude.*  In  Massachu- 
setts  it  has  been  held  actionable  to  charge  a  person  with 
an  offense  that  may  subject  him  to  a  punishment  which 
will  bring  disgrace  on  him,  though  the  punishment  be 
not  infamous.''  In  Minnesota  it  is  said  that  if  the  words 
charge  a  crime  punishable  criminally  by  indictment 
they  are  actionable.'  In  Missouri  and  Maryland  the 
crime  must  be  indictable  and  punishable  corporally,  and 
not  by  a  fine  or  imprisonment  in  default  of  a  money 
payment.*  In  Kentucky  words  that  charge  merely  an 
offense  punishable  by  fine  and  imprisonment  are  action- 
able per  se.^  And  in  several  states  it  is  provided  by  stat- 
ute what  words  shall  be  actionable  per  se." 

It  is  actionable,  therefore  (under  the  general  rule  at  the 
beginning  of  this  section),  to  charge  a  man  with  the  com. 
mission  of  such  a  specific  crime  or  offense  as  altering 
marks  on  animals,^  assault  with  intent  to  rob,*  attempt- 
ing  to  corrupt  a  jury,'  attempt  to  murder,"  arson,"  attempt 

Sec 


'  Rcdway  v.  Gray,  31  Vt.  292. 
Kimiiiis  V.  Stiles,  44  Vt.  .351. 

■^  Miller  v.  Parish,  8  Pick.  384; 
Bucldoy  V.  O'Neil,  113  Mass.  193;  IS 
Am.  Rep.  46G.  Therefore  in  that 
commonwealth  to  charge  a  •voman 
with  being  a  common  drunkard  (pun- 
ishable by  contiaement  in  the  house 
of  correction),  or  that  she  was  druuk 
in  a  single  instance  (punishable  by  a 
fine  of  live  dollars),  is  actionable,  "for 
the  punishment  of  a  woman  for  either 
offense  must  bring  disgrace  on  her": 
Brown  r.  Nickerson,  5  Gray,  1. 

'  St.  Martin  v.  Dosnoyer,  1  Minn. 
156;  61  Am.  Dec.  494;  McCarthy  v. 
Barrett,  12  Minn.  494.  And  see  Es- 
tes  V.  Carter,  10  Iowa,  4O0,  and  Lu- 
cas V.  Flinn,  35  Iowa,  9,  where  tiie 
same  rule  aeems  to  be  laid  down. 

*  Bird'  V.  Beutou,  2ti  Mo.  153;  Ram- 


mell  V.  Otis,  60  Mo.  365;  Griffiu  v. 
Moore,  43  Md.  246. 

*  Lemons?;.  Wells,  78  Ky.  117. 

*  Arliauaas,  California,  Georgia, 
Florida,  Illinois,  Indiana,  Missis- 
sippi, Missouri,  and  North  Carolina. 

'  Perdue  w.  Burnell,  Minor,  I.'IS.  But 
see  Johnston  v.  Morrow,  9  Port.  5;i5. 

*  Lewknor  v.  Cruchley,  CJro.  Car, 
140. 

*  Gibbs  V.  Dewey,  5  Cow.  503. 

'"  Scott  V.  Hilliar,  Lane,  98;  1  Vin. 
Abr.  440;  Preston  v.  Pinder,  Cro.  Eliz. 
308. 

"  Waters  r.  Jones,  3  Port.  442;  29 
Am.  Dec.  261;  WaUace  i-.Youn^,',  5T. 
B.  Mon.  155;  House  v.  House,  ")  ilc-r. 
&  J.  125;  Gage  v.  Shelton,  3  Rich.  ;U2. 
As  to  say  of  a  person,  "I  can  prove 
ti..it  J.  burnt  the  gin-house  of  C,  liy 
U.,"  or  that  "J.  was  in  a  couditiou 


2223 


SLANDEB. 


§1246 


ajority  of 
t  been  ad- 
d  that,  in 
le  act  im- 
is  punish- 
Massachu- 
erson  with 
lent  which 
.shment  be 

the  words 
indictment 
ryland  the 
)orally,  and 
if  a  money 

merely  an 
,  are  action- 
led  by  stat- 


i  Cow.  503. 
Lane,  98;  1  Vin. 
»iniler,  Cro.  Eliz. 


n,  "I  can  v™^'' 
ii-houae  of  C,  l>y 
13  ill  a  couditiou 


to  rob*  or  commit  larceny,'^  being  an  "abortionist,"'  big- 
amy,'' burglary/  bribery  and  corruption,"  burning  a 
cotton-house,'  conspiracy,'  counterfeiting,'  demanding 
money  with  menaces,*"  embezzlement,"  embracery,'^  false 
pretenses,"  forgery,"  giving  medicine  to  produce  an 
abortion,*'  homicide  generally,'*  indecent  exposure," 
keeping  a  house  of  ill-fame,"  keeping  a  gaming- 
house,*" kidnaping,""  libel,'^'  larceny ,*"  passing  counterfeit 


about  the  gin-house,  previous  to  the 
burning  of  it,  which  caused  every 
person  ia  the  settlement  to  believe 
J.  Jitl  burn  the  house":  Waters  v. 
Jones,  3  Port.  442;  29  Am.  Dec.  261. 
Or  to  say  of  another,  "I  believe  A. 
burnt  the  camp-ground ":  Giddens  v. 
Mirk,  4  Ga.  3G4.  Or,  "I  have  every 
reason  to  believe  he  burnt  the  barn," 
ami  "I  believe  he  burnt  the  barn": 
Logan  V.  Steele,  1  Bibb,  593;  4  Am. 
Dec.  ()59.  Or,  he  "  sent  two  loads  of 
his  store  goods  to  the  Black  Hills  with 
bis  mule  teams,  and  started  a  store 
there,  and  then  set  fire  to  and  burned 
hid  store  building  to  get  the  insur- 
ance": West  V.  Uanrahan,  28  Minn. 
385. 

'  Crofts  V.  Brown,  3  Bulst.  167. 

'Bordeaux  v.  Davis,  58  Ala.  Gil. 

'  Do  Pew  V.  Robinson,  95  Ind.  109. 

•  llomi'ig  V.  Power,  10  Mees.  &  W. 
5G4;  Delany  v.  Jones,  4  Esp.  190. 

*  Somers  v.  House,  Holt,  39. 
'Bendish  v.  Lindscy,  11  Mod.  194; 

Hoag  V.  Hatch,  23  Conn.  585. 

■  Waters  v.  Jones,  3  Port.  442;  29 
Am,  Dec.  261. 

^TibbottM.  Haynes,  Cro.  Eliz.  191. 

'Thirinan  v.  Matthews,  1  Stew. 
384. 

'"  Neve  V.  Cross,  Style,  350. 

"  Williams  v.  Stott,  1  Cromp.  &  M. 
6',");  3  Tyrw.  688. 

'■  Gibbs  V.  Dewey,  5  Cow.  503. 

"  As,  "  You  had  better  go  to  T.  and 
pay  liim  back  the  twenty  dollars  you 
got  from  him  by  false  pretenses  ":  La- 
foUett?^.  McCarthy,  18  111.  Api).  87. 

"  Ar.ioUl  V.  Cost,  3  Gill  &  J.  219;  22 
Am.  Dec.  302;  Gayu  Homer,  13  Pick. 
53,');  Ricks  i\  Cooper,  3  Hawks,  587. 
As  forging  a  petition  to  the  legislature; 
Alexamler  v.  Alexander,  9  Wend.  141; 
or  a  deposition:  Atkinson  v.  Reding, 
5  Blackf.  39. 


»  Fibler  v.  Dauterman,  26  Wis.  518. 

**  Taylor  V.  Casey,  Minor,  258;  Har- 
rison V.  Findlcy,  23  Ind.  205;  85  Am. 
Dec.  456;  Sugart  ?'.  Carter,  1  Uev. 
&  B.  8;  Eckart  v.  Wilson,  10  Serg.  &  R. 
44;  Montgomery  v.  Dosley,  3  Wis. 
709;  O'Connor  v.  O'Connor,  24  lud. 
418. 

"  Seller  v.  Jenkins,  97  Ind.  430. 

'«  Huckle  V.  Reynolds,  7  Com.  B., 
N.  S.,  114;  Martin  v.  Stillwcll,  13 
Johns.  275;  7  Am.  Dec.  374;  AVright 
V.  Taige,  36  Barb.  438;  Lipprant  v.  Lip- 
prant,  52  Ind.  273. 

'•  As  to  say  of  one,  "  He  makes  his 
money  easy;  he  keeps  a  gambling- 
place  ";  or  to  say  of  him,  "  He  makes 
his  money  easy;  he  keeps  a  gambling- 
hell":  Buckley  v.  O'Niel,  113  Mass. 
193;  18  Am.  Rep.  466. 

••'9  Nash  V.  Benedict,  25  Wend.  645. 

'■'*  Andres  v.  Koppcnheafer,  3  Serg.  & 
K.  255;  8  Am.  Dec.  647;  Vielei'.  Gray, 
10  Abb.  Pr.  1 

•'  Foster  v.  Browning,  Cro.  Jac.  688; 
Baker  v.  Pierce,  2  Ld.  Rayni.  959; 
Slowman  v.  Dutton,  10  Biiig.  402; 
Tomlinson  v.  Brittlebank,  4  Barn.  & 
Adol.  630;  1  Nev.  &  M.  455;  Gaul  v. 
71eming,  10  Ind.  253;  Dudley  v.  Rob- 
inson, 2  Ired.  141;  Boriiman  v.  Bayer, 
3  Binn.  515;  5  Am.  Dec.  380;  Van 
Aiken  v.  Carter,  48  Barb.  58;  Shipp  v. 
McCraw,  3  Murph.  463;  Hume  r.  Ar- 
rasmith,  1  Bibb,  165;  4  Am.  Dec. 
626;  Harman  v.  Cuiidiflf,  82  Va.  239; 
Stumer  v.  Pitchman,  22  111.  App.  399; 
124  111.  250.  As  stealing  the  boots 
from  a  dead  body  oast  ashore:  Wouson 
V.  Say  ward,  13  Pick.  402;  23  Am.  Dec. 
691.  Charging  the  plaiutilf,  as  post- 
master, with  taking  money  out  of  a  let- 
ter put  into  the  otliceby  the  defendant, 
and  appropriating  it  to  liis  own  use; 
with  keeping  and  emitezzling  letters, 
etc. ;  Uays  v.  Allen,  2  Blackf.  4U8.     A 


§  1246 


SLANDER   AND   LIBEL. 


2224 


money/  lotting  a  house  for  lewd  purposes,^  mailing  in. 
decent   and   immoral    matter,^   murder,*   manslaugliler," 


partner  charging  his  copartner  with 
"pilfering  "  out  of  the  store:  Becket?'. 
Stcrrctt,  4  Bhicivf.  4i)9.  <;hiirgiiig  the 
pliiiiitiOSvith  hiiving  robbed  tlio  Uaietd 
ytatos  mail:  Jones  v.  Chapman,  5 
Blackf.  88.  Charging  one  with  being  a 
thieving  person,  or  saying  of  liim  that 
ho  stole,  and  ran  away:  Alley  r.  Neelv, 
5  Blackf.  200.  "  lie  stole  my  corn"": 
Haag  V.  Coolcy,  33  Kan.  ;}87.  "Ho 
is  a  thief;  lie  stole  my  wheat,  and 
gronnd  it,  and  sold  the  flour  to  the  In- 
dians':  Parker  u.  Lewis,  2  G.  Greene, 
311.  "Jle  has  stolen  boards":  Bur- 
bank  V.  Horn,  3D  Me.  233.  "There 
is  the  man  who  stole  my  hor.sc  and 
fetched  him  home  this  morning  ":  Bon- 
ner r.  Boyd,  3  liar.  &  J.  278.  "1  will 
venture  anytiiing  ho  has  stolen  my 
book":  Nye  v.  Otis,  8  Mass.  122;  5 
Am.  Deo.  79.  "J.  H.  stolo  corn,  and 
I  can  prove  it;  he  is  a  rogue,  and  not 
fit  to  keep  a  mill."  "He  stole  corn, 
and  I  can  prove  it.  I  have  sent  my 
corn  to  his  mill,  and  weighed  it  before 
I  sent  it,  and  weighed  it  on  its  return, 
and  it  was  lacking":  Hume  v.  Arra- 
smith,  1  Bibb,  1(J5;  4  Am.  Dec.  026. 
"I  saw  the  plaintiff  take  corn  from 
A's  crib  twice,  and  look  around  to  see 
if  any  person  saw  him  measuring": 
Jones  ('.  MeUowoll,  4  Bibb,  188. 
Charging  one  who  has  the  caro  of  goods 
with  stealing  them:  Gill  v.  Bright,  G 
T.  B.  Mon.  l'30.  "  Ho  is  a  hog-thief  ": 
Hogg  V.  Wdson,  1  Nott  &  McC.  216. 
Cliarging  one  with  having  stolen  cot- 
ton, even  if  the  charge  was  made  in 
allusion  to  ccitton  which  tlie  plaintiff 
had  to  gin  for  the  defendant's  brother: 
Stokes /'.  Stuckey,  1  McCord,  562.  Call- 
ing a  person  "a  bloody  thief  ":  Fisher 
9\  lloteieau,  2  McCord,  iSD.  Saying 
of  another  person,  "  tell  him  ho  is  rid- 
ing a  stolen  horse,  and  has  a  stolen 
watch  in  his  pocket":  Davis  t'.  Joims- 
ton,  2  Bail.  579.  "You  get  your  liv- 
ing by  sneaking  about  when  other 
people  are  asleep  ";  ' '  What  did  you  do 

'  But  the  charge  must  be  that  the 
plaintiff  know  it  was  counterfeit: 
Christ  c.  Bridgman,  6  Mo.  15)0. 

^  \Viicre  such  act  is  by  statute  a 
crime:  Hallcy  v.  Gregg,  7-t  Iowa,  103, 

^  Uaibtead  v.  Nelson,  30  Hun,  149. 


with  the  sheep  you  killed  ? "  "  Did  jnu 
cat  it?"  "  It  was  like  the  beef  you  j^dt 
negroes    to    bring     you    at    nijjlit '; 
"Where  did  you  get  the  little  vil,i 
shoats  you  always  have  in  your  pen  ?" 
"  You  are  an  infernal  roguish  lasc.-d': 
Morgan  v.   Livingston,   2   I'ieh.   riT.'j. 
"  He  went  to  Gray's  shop  for  a  wutuli; 
demanded   a  gold  watch;    (iray  tdlij 
him  to  take  it;  he  did  so;  the  owner 
came  for  the  watch;  Gray  sent  wonl 
to  him  to  send  it  back,  which  lie  diil. 
If  that  be  not  stealing,  whatdo  ymuall 
it?"    Mayson  v.   Siicppard,    12  jti.li. 
254.     Charging  a  person  with  li.iviiiff 
received  a  letter  containing  nicmy,  to 
deliver  to  another;  that  he  g;ivi;  him- 
self  a  false  name  at  the  time,  and  that, 
instead   of   delivering   the   letter,   lie 
broke  it  open  and  used  the   nioiioy; 
Cheadle  v.  Bucll,  0  Ohio,  07.     '".My 
watch   has   been  stolen  in   M.'s  liar- 
room,  and  I  have  reason  to  believe  that 
T.  took  it,  and  that  her  mother  cuu. 
cealedit":  Millerr.  Miller,8Joiins,74, 
77.    "You  will  steal":  Cornelius  r.  V:iu 
Slyck,  21  Wend.  70.    "  She  has  .stoka 
tea,  etc.,  and  carried  it  away  home": 
Coleman   v.    Playsted,    30    Barb.  %. 
"  You  are  a  God  danmed,  lying,  tliJL'v- 
ing  son  of  a  bitch  ":  Reynolds  r.  Koss, 
42  Ind.  387.     "  You  are  a  God  .laiiiiiol 
liar  and  a  thief,  and  I  can  prove  it": 
McCJregor  v.  Eakin,  3  111.  App.  lUO, 
"  Tiiese  books  rmcaning  the  firm  bdoki 
of  the  parties]  must  be  in  eouit.     Fnr 
he  is  a  swindler  and  thief,  and  stnli! 
!?8,000  from  mc  ":    Stern  v.   Kiitz,  .IS 
Wis.  130.     "  Ho  stolo  my  dog  ":  lliir- 
riugton  v.  Miles,  11  Kan.  480;  1.")  Am, 
Rep.    355.     To   charge   that    iilaiiititf 
"  stole  and  destroyed  my  sister's  will 
and  other  papers  "  is  slanderous;  tlie 
Penal  Code  of  New  York,  seetlna  HI), 
declaring  that  one  who,  know  in,'  that 
a  paper  may  be  required  in  cvideiiou, 
willfully  destroys  it  to  prevent  its  ino- 
duction,   is  guilty  of  a  misdetnraaor; 
and  sections  528  and  718,  making  any 

*  Peake  v,  Oldham,  Cowp.  27");  -^iik 
nom.  Oldham  v.  Peake,  2  W.  black. 
959;  Button  v.  Heyward,  8  Mud.  '11 

^  Ford  V.  Prinuo.se,  5  Dowl.  &  li. 
287;  Edsall  v.  Russell,  4  Man.  &  0. 
1090;  5  Scott  N.  R.  801. 


2225 


SLANDER. 


§1246 


perjury/  receiving  stolen  goods  knowing  them  to  have 
been  stolon,^  robbery/  removing  land-murks/  secreting 


li  beef  yiiu  ^ot 
I    at    niylit"; 
he  little  will 
in  your  pi'u';" 
)guisU  latscul': 
2   lUeli.    'u'\. 
Dp  for  a  watch; 
•h;   Cray  UAA 
so;  the  <iwiii!r 
Jray  se'it  wurd 
■wliieli  lie  dill, 
vhattloytiuiall 
panl,    1-  r.i'h. 
in  with  having 
iniuiJ!  nH'.m;y,  to 
it  he  gavo  him- 
time,  aiidlluit, 
the   letie'.-,   he 
ud  the    iiiimcy: 
)hio,  C7.     '-My 
Ml  in  M.';i  Iwr- 
in  to  believe  that 
lier  mother  cou- 
iller,8Jolin«/-t. 
Cornel  iiw  i:  Vim 
"  She  ha-i  htukn 
it  away  home"; 
30    iiarb.   %. 
led,  lying,  tliit^v- 
leynohb  r.  Ross, 
re  a  God  <lainiied 
[  can  prove  it": 

3  111.  App.  m 

ng  the  firm  111" 'b 
)e  in  couit.     For 

thief,  and  stolo 
tern  v.  Kat/.,  "8 
|e  mytlog":  H^^r- 
,.an.  480;  1')  Am. 
ge  that  plaintiff 
|l  my  sister's  will 
aliinderoas;  the 

ork,  seeti'ia  110, 
[ho,  know  in:;  that 

ired  in  cviduuei', 
,o prevent  itsinu- 
If  a  misdeinraaor; 

718,  making  any 


artitde  of  value,  contract,  thing  in  ac- 
tion, or  written  instrument,  by  which 
any  pecuniary  obligation  or  interest 
iaji'-opc-ty  id  created,  transferred,  in- 
creaseil,  ('ininished,  etc.,  the  subject 
III  lirccny.  The  charge  imputing  theft 
will  bo  presumed  to  have  been  made 
in  rctereiico  to  papers  that  may  bo  the 
.(iiliit'c't  of  larceny:  Collyer  i\  CoUyer, 
N.  V.  Sup.  Ct.,  1889. 

But  the  following  have  been  held  not 

actionable:  To  say  of  a  treasurer  of  a 

Masonic   lodge:    "  He  has  robbed  the 

treasui'y   of    a   sum    of    money,    and 

JKiuglit   a    farm   with    it ":    Allen    v. 

HilliiiHU,    1-  Tick.   101;    to  charge  a 

wxavrr  with  stealing   filling   sent  to 

hia   house   to   be   woven    into   cloth: 

ilawii  V.  Smith,  4  B.  Mon.  3So;  or  the 

words,    "Uncle    Daniel    must   settle 

fur  aonie   of   my   logs  ho   has   made 

away  with  ":  Brown  v.  Brown,  14  Me. 

S17;  charging  one  with  having  stolen 

a  "l)(;e-trec  ":    Cock  v.  Weatherby,  5 

Sinedcs  &  M.  3;{3;  "  A  man  that  would 

(lu that woulil  steal":  Steest'.  Kemble, 

•27  IV  St.  112;  "She  took  tea,  etc., 

from  lier,  and  she  found  them  in  her 

thing-s ";  also,  "  She  had  taken  tea  and 

calico,  and  I  think  she  said  sugar  ": 

Colonian  v.    Playsted,   36   Barb.    2G; 

"You    have    stolen    a    file    of    bills 

out  of  my  desk "':  Blanehard  v.  Fisk, 

2N.  H. '3i)S;    "J.  0.  has  stolen  my 

mark'";  "You  are  a  thief;  you  have 

stolen  my  marie  ":  Ogden  v.  Riley,  14 

N.  J.  L.  18G;  25  Am.  Dec.  513;  "  You 

as  L;ood  as  stoic  the  canoe  of  J.  H.": 

Stokus  V.  Arey,   8  Jones^  GO;    "Yt)U 

stole  my  money;    yea,  you   kept  my 

money  ":  Taylor  v.  Short,  40  Ind.  oOO; 

"You  are  a  eiieat  and  a  swindler,  and 

ynu  defrauded  me  ":   Lucaa  v.  Flinn, 

3j  Iowa,  !). 

'  Hutts  r.  Hutts,  62  Ind.  214;  Zim- 
morn,au  r.  McMakin,  22  S.  C.  372;  53 
Am,  l:ei>.  720;  Chapman  v.  Giilet,  2 
l-'oim.  40;  Gibbs  v.  Tucker,  2  A.  K. 
Mursh,2rJ;  Canterbury r.  Hill,  4Stew. 
k  V.  224;  Harris  v.  Purdy,  1  Stew. 
231;  Holt  V.  Scholefield,  6  Term  Rep. 
91;  Moore  v.  Homer,  4  Sneed,  491; 

'  Alfred  n.  Finlow,  8  Q.  B.  854. 
,    4<owclilfo  V,  Edmonds,  7  Mecs.  & 
1  W.  12. 

140 


Oilman  v.  Lowell,  8  Wend.  573;  24 
Am.  Dec.  96;  Commons  n  Walters,  1 
Port.  377;  27  Am.  Dec.  U35;  Lea  v. 
Robertson,  1  JStew.  138;  Cailock  v. 
Spencer,  7  Ark.  12;  Eocles  r.  Shannon, 
4  Harr.  (Del.)  193;  Newbiti'.  fStatuck, 
35  Me.  315;  58  Am.  Dec.  70(5;  Rine- 
heardt  v.  Potts,  7  Ired.  L.  403;  as, 
"  You  have  taken  a  false  oatli  Ijcfore 
Squire  R.":  Ruo  v.  Mitchell,  2  Dall. 
58;  1  Am.  Dec.  258;  "  You  swore  to  a 
lie,  for  M'hich  you  now  stand  indicted  "; 
Pelton  V.  Ward,  3  Caincs,  73;  2  Am.. 
Dec.  251;  "That  is  false,"  to  a  witness; 
testifying  in  court:  McClaughry  v.. 
Wetmore,  6  Johns.  82;  5  Am.  Dec, 
194;  Mower  v.  Watson,  11  Vt.  536; 
34  Am.  Dec.  704;  "Yon  swore  false  at, 
the  trial  of  your  l)rotlier";  Fowlc  v. 
Robbins,  12  Mass.  498;  "He  swore 
to  a  damned  lie,  and  I  will  put  him 
through  ":  Crone  v.  Angell,  14  Mich. 
340;  "  You  swore  to  a  lie  before  the 
grand  jury":  Perselly  v.  Bacon,  20 
Mo.  330;  "He  is  perjured":  Hopkins 
V.  Beedle,  1  Caines,  347;  2  Am.  Dec. 
191;  "He  swore  falsely,  and  I  will 
attend  to  the  grand  jury  respecting 
it":  Oilman  v.  Lowell,  8  Wend. 
573;  "He  [the  i>laintifi]  has  sworn  to 
a  lie,  and  done  it  meaningly,  to  cut  my 
throat":  Coons  v.  Robinson,  3  Barb, 
625;  "  I  would  not  swear  to  what  C. 
has  for  the  town  or  the  county.  P, 
is  honestly  mistaken,  but  C,  is  will- 
ful": Walrath  v.  Ncllis,  17  How.  Pr. 
72;  "I  had  a  lawsuit  with  A,  and  B 
swore  falsely  against  me,  and  I  have 
advertised  him  as  sucii ":  Magee  v. 
Stark,  1  Humph.  500;  "The  Rev. 
Thomas  Smith  is  a  perjured  man ": 
Cummin  v.  Smith,  2  Serg.  &  R.  440; 
saying  to  a  witness  who  has  just  given 
his  testimony  in  a  justice's  court, 
"You  have  sworn  a  manifest  lie": 
Kean  v.  McLaugldin,  2  Serg.  &  R. 
469;  "He  has  perjured  himself;  he 
swore  lies  before  the  court  at  Madi- 
son, according  to  the  church-book  ": 
Brown  v.  Hanson,  53  Ga.  632. 

But  not  that  he  is  forsworn:  Hop- 
kins V.  Beedle,  1  Caines,  347;  2  Am. 

♦  Todd  V.  Rough,  1  Serg.  &  R.  18; 
Young  V.  Miller,  3  Hill,  24;  Dial  v. 
Holter,  eOhioSt.  228. 


§  124G 


SLANDER   AND   LIBEL. 


2226 


testator's  goods  as  administrator,*  smuggling,^  soliciting 
to  commit  a  crime,'  subornation  of  perjury,*  treason,' 
unnatural  offenses,"  vagrancy.' 

So  where  the  words  iirply  a  felony ,  though  no  siu^cific 
crime  is  charged,  they  are  actionable;*  as,  for  example,  tlie 
following:  "If  you  had  had  your  deserts, you  would  have 
been  hanged  before  now  ";"  "  He  deserves  to  have  his  cars 
nailed  to  the  pillory  ";  *°  "  You  have  committed  an  act  for 
whicli  I  can  transport  you";"  "You  have  done  many 
things  for  which  you  ought  to  be  hanged,  and  I  will  have 
you  hanged  ";  '^  "  I  know  enough  that  he  has  done  to  send 
him  to  the  penitentiary  "; "  "  Ho  was  oii3e  accused  of  steal- 


Dec.  191;  Ward  v.  Clark,  2  Johns. 
10;  3  All.  Dec.  383;  Sheely  v.  Biggs, 
2  Har.  &,  J.  363;  3  Am.  Dec.  552;  or 
made  false  affidavits:  Casselmau  i\ 
Winship,  3  Dale.  292;  or  that  he 
swore  to  a  lie,  there  being  no  refer- 
ence til  any  judicial  proceedings,  or 
any  oalii  which  would  be  the  subject 
of  perjury:  Shinloub  w.  Ammerman,  7 
Ind.  347;  Mebane  v.  Sellars,  3  Jones, 
J99;  Watsou  V.  Hampton,  2  Bibb,  319; 
Martin  r.  Melton,  4  Bibb,  99;  Vaughan 
V.  Havens,  8  Johns.  109;  Crookshank 
V.  Gray,  20  Johns.  344;  Bonner  v.  Mc- 
Phail,  ;U  Barb.  106;  Packer  v.  Span- 
gler,  2  IJinn.  60;  Barger  v.  Barger,  18 
Pa.  8t.  489;  Roella  v.  Follow,  7 
Black  f.  377;  Shaflfer  v.  Kintzer,  1 
Biun.  5;!7;  2  Am.  Dec.  488;  Power 
V.  Milkr,  2  McCord,  220;  Kimmis  v. 
Stiles,  44  Vt.  351;  Small  v.  Clewley, 
60  Me.  '262;  or  that  one  has  falsely 
taken  an  oath  prescribed  by  an  uncon- 
Btitutiiiiial  and  void  act  of  the  legisla- 
ture: iSurkett  V.  McCarty,  10  Bush, 
758;  "If  I  had  sworn  to  what  you 
did,  I  would  have  sworn  to  a  lie  ": 
Beswick  v.  Chappel,  8  B.  Mon,  486; 
"  He  swore  to  a  damned  lie,  but  I  am 
not  lialilo,  because  I  have  not  said  in 
what  suit  he  testified":  Muchler  v. 
Mulhellen,  Hill  &  D.  263;  "  He  swore 
a  lie  before  the  church  sessions,  and  I 
can  prove  it  ":  Harvey  r.  Boies,  1  Pen. 
&  W.  12;  "He  h:-3  sworn  falsely  in 
the  case  with  my  brother":  Schmidt 
V.  Witherick,  29  Minn.  156.  Where 
the  words  charged  were:  "Old  C.  is 
a  hog-thief;  I  have  been  keeping  him 


in  hog-meat  for  twenty  years;  lie  has 
always  kept  a  set  of  thieves  and  liarj 
about  him  to  steal  for  him  and  swear 
for  him;  they  will  swear  a  man  to 
hell," — it  was  held  that  the  allegations 
as  to  keeping  C.  in  meat,  ami  as  to 
swearing  a  man  to  hell,  and  as  to  C.'s 
keeping  liars  to  swear  for  liim,  were 
not  actionable;  otherwise,  those  as  to 
C.'s  being  a  thief,  and  keeping  thievM 
to  steal  for  him:  Porter  v.  Choen,  (il) 
Ind.  338. 

1  Beck  V.  Stitzel,  21  Pa.  St.  522. 

•■'Stilwell  V.  Barter,  19  Wend. 
487. 

*  Leversage  v.  Smith,  Cro.  Eliz.  710; 
Tibbott  V.  Haynes,  Cro.  Eliz.  191. 

*  Harrison  v.  Thornborough,  10 
Mod.  186. 

*  Fry  V.  Came,  8  Mod.  283;  Stacle- 
ton  V.  Frier,  Cro.  Eliz.  251. 

'^  Woolnorh  v.  Meadows,  5  L;i8t,  403; 
Colman  v.  Godwin,  3  Doug.  'JO. 

'  Where  it  is  punishable  by  fine  and  I 
imprisonment:  Miles  v.  OlJtiekt,  4 1 
Yeates,  423;  2  Am.  Dec.  412. 

®  Thompson  v.  Lusk,   2  Watts,  I"; 
26  Am.    Dec.    91;  Gorham  c.  Ives,2 
Wend.  534;  SewoU  v.  Catliu,  3  Wend,  | 
291;  Gibson  v.  Williams,4  Wend.  320; 
Morgan  v.  Livingston,  2  Rich.  573. 

*  Donne's  Case,  Cro.  Eliz.  02. 
^®  Jenkinson  v,  Mayue,   Cro.  Elii  | 

384;  1  Vin.  Abr.  415. 

"  Curtis  V.  Curtis,  10  Bing.  477;  3 1 
Moore  &  S.  819;  4  Mooro  k  ii.  337. 

•-•  Francis  v.  Roose,  3Mces.  &  W.lDl 
1  Hurl.  &  H.  36. 

»  Johnson  v.  Shields,  25  N.  J.  L.  llf 


222G 


2227 


SLANDER. 


§  1246 


,2  soliciting 
,*   treason,' 

t  no  specific 
!Xiimplc,tk' 
would  have 
lavc  his  ears 
,etl  an  act  for 
done  many 
d  I  will  have 
done  to  send 
3Usedof  steal- 

•nty  years;  lie  \m 
I  thieves  iinil  liars 
[or  liiiu  !i"'l  swear 
swear  a  uian  to 
,hat  the  allegation? 
,n  meat,  and  as  to 
hell,  and  as  to  C.'s 
vear  for  him,  were 
lerwise,  tin  we  as  to 
ind  keeping'  tliieva 
:»ortor  V.  Choeu,  Gd 

21  Pa.  St.  522. 
irter,     19    "^VenA. 

mith,Cro.Eliz.710; 

,  Cro.  Eliz.  19h 
Thornborough,   10 

Mod.  283;  Staple^ 

IeUz.  251.  I 

feadows,  rjta8t,4W;| 

I,  3  Doug.  <J0. 
inishahlehyhneand 

fliles  V.   Oldtiekl,  H 

.  Dec.  412. 

,usk,  2  Watts,  li; 
i.  (jorhamr.  Ive8,2 
Ur.Catliu  3WenJ. 
illiams,4  Wend  3'20; 
3ton,  2  Rich.  573. 

Cro.  Eliz.  02. 
Mayne,  Cro.  m\ 

415.  .,,1 

4  Moore  &  ^-.l^A 
|o8e,3Mee9.&W.191, 

lield3.25N.J.L.llM 


ing  a  horse;  he  sued  the  accusers,  and  at  the  trial  a 
verdict  was  brought  in  for  the  defendants";'  "lie  is  a 
thief  "i'^  "I  believe  he  burnt  the  barn";'  "He  would  ven- 
ture anything  the  plaintiff  has  stolen  N.'sbook";^  "I  have 
made  the  charge  against  him,  and  I  will  go  on  witli  it";* 
''  You  liavo  stolen  my  belt ";  *  "  lie  is  a  thieving  puppy  "; ' 
"You  have  been  cropped  for  felony";®  that  "ho  is  a 
rogue  and  villain;  that  he  had  ruined  many  families,  and 
that  tlie  curses  of  widows  and  children  were  on  him;  that 
he  had  wronged  the  defendant's  father's  estate,  and 
cheated  the  defendant's  brother  T.";*  calling  one  a 
"hoary-headed  filcher";"  saying,  "I  have  lost  a  calf-skin 
out  of  ^^y  cellar  the  day  that  you  and  Bornman  got  the 
h'ather,  and  there  was  nobody  in  the  cellar  but  you, 
Bornman,  and  Gray;  and  I  do  not  blame  you  nor  Gray, 
but  Bornman  must  have  taken  it."" 

So  where  the  words  impute  the  past  commission  of  a 
crime,  they  are  actionable;  and  it  is  not  necessary  that 
they  should  accuse  the  plaintiff  of  a  crime  which  would 
cause  his  arrest.*'^  Thus  it  is  actionable  to  call  a  man  a 
"returned  convict ";"  or  to  say  that  he  is  a  thief  or  felon, 


'  Johnson  v.  St. Louis  Dispatch  Co., 
65  M().  5:!'J;  27  Am.  Rep.  29.3. 

■Quis^loy  V.  McKee,  12  Or.  22;  53 
Am.  Rt'p.  320;  Salem  v.  Augell,  46 
Vt.  740. 

'Lo(;;m  v.  Steele,  1  Bibb,  593;  4 
Am.  Do;.  659. 

*Nvu  )'.  Otis,  8  Mass.  121;  5  Am. 
Dec.  7i». 

^Thompson  v.  Lusk,  2  Watts,  17; 
26  Am.  iJec.  91. 

*.St.  Martin  v.  Desnoyer,  1  Minn. 
156;  01  Am.  Dec.  494. 

'  Litilu  V.  Barlow,  26  Ga,  423;  71 
Am.  Dec.  219. 

^Wil  y  V.  Campbell,  5T.  B.  Mon. 
396. 

"Marshall  v.  Addison,  4  Har.  4; 
|McH.  r.:{7. 

'Hr„.|ccr  r.  Hadley,  102  Ind.  416. 

"Biiniinan  y.  Boyer,  3  Binu.  515;  6 
I  Am.  Dfc.  .S80. 

'- "  Tlie  charge  of  criminal  conduct 


for  which  punishment  has  been  in- 
flicted, or  which  has  been  pardoned, 
or  a  prosecution  for  which  is  barred 
by  tl)(3  statute  of  limitations,  will 
support  an  action  under  corresponding 
circuHistances  to  those  w  liich  support 
one  wlicre  the  charge,  it  true,  would 
still  subject  the  party  to  punishment. 
It  is  not,  therefore,  the  danger  that 
might  fuUow  from  the  charge,  but  the 
disgrace  of  the  scandal,  that  consti- 
tutes the  injury  ":  Cooley  on  Torts, 
200;  Carpenter  v,  Tarrant,  Cas.  t. 
Hardw.  .339;  Smith  v.  Stewart,  5  Pa. 
St.  372;  HoUey  v.  Burgess,  9  Ala. 
728;  Van  Ankin w.  Westfall,  U.Tohus. 
233;  Krebs  v.  Oliver,  12  Gray,  239; 
Shipp  r.  McCraw,  3  Murph.  403;  9 
Am.  Dec.  611;  Brewer  r.  Weakley,  2 
Over.  99;  5  Am.  Dec.  656, 

"  Fowlw:  V.  Dowdney,  2  Moody  & 
R.  119. 


§1246 


SLANDER  AND  LIBEL. 


2228 


even  thoagh  he  has  been  convicted  of  a  crime,  and  lias 
been  pardoned;*  or  that  he  has  been  in  the  penitentiary;' 
or  that  he  has  been  imprisoned  for  larceny  in  a  foreign 
country.'   A  child  too  young  to  be  punishable  for  a  crime 


may 


nevertheless    maintain   an   action   for   sland 


er  in 


charging  him  with  it,*  But  words  amounting  to  a  clutrgo 
that  the  plaintiff  had  committed  a  penitentiary  ofFcusc, 
but  that  he  was  insane  when  he  committed  it,  are  not 
actionable.* 

If  the  offense  imputed  be  not  indictable,  but  only  pun. 
ishable  summarily  before  a  magistrate  by  penalty  or  line, 
and  does  not  impute  moral  turpitude,  the  words  will  not 
bo  actionable  per  se."  So  if  merely  fraud,  dishonesty, 
immorality,  or  vice  be  imputed,  no  action  lies  without 
l^roof  of  special  damage.'  Therefore,  for  this  reason  It 
is  not  actionable  per  se  to  call  a  man,  or  to  charge  him 
with  being,  a  "  bogus  peddler,"  *  a  cheat,'  a  rogue  or 
rascal;^"  or  with  opening  and  reading  a  letter;"  selling 
personal  property  by  wife  of  joint  owner;"  taking  awav 
standing  corn;"  calling  a  person  a  "God  damned  rogue";" 
saying  to  a  white  man,  "  Negroes  have  been  with  your 
wife;  I  can  prove  it ";  **  "  He  killed  and  salted  one  of  my 
hogs";^"  calling  a  man  a  "damned  rogue";*'   charging 

Latimer,  L.  R.  3  Ex, 


*  Leyman   v. 
Div.  15,  352. 

•'  Smith  V.  Stewart,  5  Pa.  St.  372. 
»  Krebs  v.  Oliver,  12  Gray,  239. 

*  Stewart  V.  Howe,  17  111.  71. 

*  Abranis  v.  Smith,  8  Blackf.  95. 

*  See  ante. 

''  Even  a  charge  of  "sodomy,"  that 
crime  not  being  indictable  in  the  juris- 
diction, is  not  actionable  per  se:  Mel- 
vin  V.  Weiant,  36  Ohio  St.  184;  38 
Am.  Rep.  572;  or  the  crime  against 
nature:  Coburn  v.  Harwood,  Minor, 
93;  12  Am.  Dec.  37;  or  incest;  Eure 
V.  Odom,  2  Hawks,  52.  But  in  some 
states  a  charge  of  immorality  would 
seem  to  be  actionable:  Walton  v.  Sin- 
gleton, 7  Serg.  &  R.  451;  10  Am.  Dec. 
472. 

*  Pike  i:  Van  Wormer,  5  How.  Pr. 
171;  6  How.  Pr.  99. 


•Savage  v.  Robeny,  2  Salk.  6!)4; 
Pollock  V.  Hastings,  88  Ind.  248. 

'0  Stanhope  v.  Blith,  4RLp.  Ij.  As, 
"You  are  a  rogue,  and  your  motlier 
has  upheld  you  in  stealing,  from  your 
cradle  up  ":  McCurry  v.  McCuriy,  b2 
N.  C.  296.  "You  are  a  rog\u,  ami  I 
can  prove  that  you  cheated  M.  S.  out 
of  one  hundred  dollars ":  AViiitur  r. 
Sumvalt,  3  Har.  &  J.  38. 

»'  McCuen  v.  Ludlum,  17  N.  J.  L 
12;  Hillhouse  v.  Peck,  2  Stew.  &  P, 
395. 

**  Rodgers  v.  Rodgers,  1 1  Heisk, 
757. 

'=•  Stitzell  V.  Reynolds,  50  Pa.  St 
488. 

•*  Ford  V.  Johnson,  21  Ga.  399, 

1*  Castleberry  v.  Kelly,  26  Ga.  606. 

"  Clay  V.  Barkley.  Sneed,  7'J. 

"  CaldweU  v.  Abby,  Hardin,  529, 


2229 


SLANDER. 


§  1246 


ne,  and  has 
nitentiary/ 
in  a  foreign 
for  a  crime 
slander  in 
;  to  a  cluirgo 
iary  oircusc, 
it,  are  not 

ut  only  pun. 
nalty  or  iino, 
jrds  will  not 
,,  dishoiu'sty, 
lies  without 
,hi3  reason  it 
)  charge  him 


one  with  being  a  liar; '  saying  of  the  plaintiff  "  that  he 
got  drunk  on  Christmas";*  calling  another  a  "bush- 
whacker";' saying  of  a  woman,  '•  She  was  hired  to  swear 
a  child  on  me;  she  has  had  a  child  before  this,  wlien  she 
went  to  Canada;  she  would  come  damned  near  going  to 
state  prison";*  calling  a  person  a  "swindler";®  saying 
of  a  person,  "  He  was  a  rogue,  and  kept  at  home  a  rogue- 
hole,  and  harbored  rogues";*  imputing  to  a  female  a 
wanton  and  lascivious  disposition  only;'  charging  a 
person  to  be  a  mulatto,  and  "  akin  to  negroes  ";"  telling 
the  plaintiff,  "  You  had  a  share  in  breaking  into  the 
store," — alleged  to  refer  to  a  robbery  of  a  store  belonging 
to  the  plaintiff  and  defendant  as  copartners;*  charging 
the  plaintiff  with  having  cut  off  the  tail  of  the  defend- 
ant's horse;  ^^  charging  a  person  with  the  intemperate 
use  of  spirituous  liquors;"  charging  that  one  burnt,  de- 
»   a  rogue  or  H  stroyed,  and  suppressed  a  will;  ^^  saying,  "  F.  had  <a  child 


tter;"  st-llhig 

[  taking  away 

ned  rogue";" 

;en  with  your 

ted  one  of  my 

";!'    charging 

)eny,   2  Sulk.  CM; 

i,  88  Ind.  -248. 

lith,4RL-i).  l.^.  As, 

anil  your  mother 

stealing,  from  juiir 

irry  V-  McCuny,  bi 
are  a  ro^'u-,  uml  I 

a  cheated  M.  S.  out  I 
ollara":  Wiutur 
I  J.  38.        ^^  ^  , 
udlum,  17  N.  JL 
?eck,  2  Stow.  &  r. 

lodgers,   H  Heisk, 

jynolds,  50  Pa.  St| 

,on.2lGa.m 
.  Kelly,  21)  Ga.  600 
ey,  Sneed,  7'J. 
iby,  Hardin,  529, 


whilst  she  was  at  K.'s  pretending  to  weave  a  piece  of 
cloth;  she  lay  abed  nearly  all  the  time  she  was  pretend- 
ing to  weave  her  cloth,  and  had  her  baby,  a  large  baby, 
and  K.  had  her  cloth  woven  for  her";"  charging  that 
Ithe  plaintiff  had  poisoned  the  defendant's  horse,^'  or 
I  with  purchasing  liquor,"  or  being  a  "deserter,"'^  or 
charging  one  with  being  in  a  suspicious  place  under  sus- 
picious circumstances;"  or  charging,  "You  have  took 
my  money,  and  have  it";"  or  saying,  "A  got  drunk, 
and  came  home  with  some  powders,  and  tried  to  get  his 

Andetson,   4   T.   B. 


'  Sinalley    v. 
|Mon.  367. 

'Warren  v.  Norman,  1  Miss.  387. 

'Curry  v.  Collins,  37  Mo.  324. 

'Brookcr  v.  Coffin,  6  Johns.  188; 
MAiii.  Dec.  337. 

'Chaso  V.  Whitlock,  3  Hill,  139; 
IStevwisou  V.  Hayden,  2  Mass.  406; 
lOdiorne  r.  Bacon,  6  Cash.  185. 

;I,l,,l  r.  Jones,  2Dev.  162. 

'  Lucas  V.  Nichols,  7  Jones,  32. 

'  Barrut  y.  Jarvis,  1  Ohio,  83,  note. 

'  Alfcle  V.  Wright,  17  Ohio  St.  238; 
183  Am.  Dec.  616. 


1"  (rage  V.  Shelton,  3  Rich.  242. 

"  O'Hanlon  v.  Myers,  10  Rich.  128. 

•»  O'Hanlon  v.  Myers,  10  Rich.  128. 

"  McQueen  v.  Fulgham,  27  Tex. 
463. 

^*  Chaplin  v.  Cruikshanks,  2  Har. 
&  J.  247. 

^"  Sterling  v.  Jugenheimer,  69  Iowa, 
210. 

'*  HoUingsworth  v.  Shaw,  19  Oliio 
St.  430;  2  Am.  Rep.  411. 

»'  Waters  v.  Jones,  3  Port.  442;  29 
Am.  Dec.  261. 

>»  Christal  v.  Craig,  80  Mo.  367. 


§  124G 


SLANDER   AND   LIBEL. 


2230 


wife  to  take  thorn,  but  sho  refused,  and  sent  for  Dr.  15, 
and  ho  said  that  they  wore  arsenic  and  poison,  and  if  bho 
had  taken  any  of  them  they  would  have  killed  lier;  A 
tried  to  poison  his  wife";  *  or  saying  that  the  plainliU's 
boys  "  did  frequently  come  to  our  house,  and  hire  our 
negroes,  and  take  the  dogs,  and  go  down  into  the  rivcr- 
bottoiu,  and  kill  cattle  no  more  theirs  than  niiiio";' 
or  merely  charging  a  person  with  setting  fire  to  and 
burning  up  his  house;^  or  calling  a  person  a  "gainbUi/' 
"black-leg,"  "  black-sheep,"  unless  it  can  bo  shown  tliat 
the  by-standers  understood  the  words  to  imply  "  a  cheat- 
ing gambler,  punishable  by  the  criminal  law";^  or 
calling  one  a  swindler,^  or  a  trespasser,**  a  villiiin,"  a 
wife-beater,^  or  saying  that  he  whipped  his  mother," 

So  it  is  not  actionable  to  say  of  a  woman,  married  or 
s.ingle,  that  she  is  a  jirostituto  or  whore,'"  or  that  slic;  liarf 
committed  adultery  or  fornication  with  a  certain  person,' 
or  that  she  is  unchaste  generally." 


'  Rock  V.  MeClarnon,  95  Iml.  415. 
•■'  Porter  v.  Hugliej;,  2  Bibb,  232. 
»  Frank  v.  Dimuiiig,  .S8  Wis.   270; 
Eites  V.  E.stes,  75  Me.  478. 

♦  Baruott  r.  Allen,  3  Hurl.  &  N. 
376;  27  L.  J.  Ex.  412;  1  Foat.  &  F. 
125;  Van  Tassel  v.  Capron,  1  Deuio, 
250;  4H  Am.  Dec.  667. 

"  Weil  V.  Altenhofen,  26  Wis.  708. 
"  Og<len  V.  Turner,  6  Mod.  104. 
'  Stanhope  v.  Blith,  4  Rep.  15. 
"Dudley    v.   Horn,    21    Ala.    379; 
Bfrch  V.  Benton,  20  Mo.  153. 

*  Speaker  v.  McKenzie,  20  Mo.  255. 
'»  Brooker  v.  Coffin,  5  Jolins.  188;  4 

Am.  Dec.  337;  Buys  v.  Gillespie,  2 
Johns.  115;  3  Am.  Dec.  404;  Berry  v. 
Carter,  4  Stew.  &  P.  387;  24  Am.  Dec. 
762;  Woodbury  v.  Thompson,  3  N.  H. 
194;  Itriffin  v.  Moore,  43  Md.  246. 

»  Pollard  V.  Lyon,  91  U.  S.  225. 

'2  Pollard  V.  Lyon,  91  U.  S.  225;  El- 
liott V.  Ashbury,  2  Bibb,  473;  5  Am, 

Dec.  031;   K v.  H ,  20  Wis. 

239;  91  Am.  Dec.  397;  Ross  v.  Fitch, 
58  Tex.  148.  In  some  states  where 
fornication  is  indictable  and  punish- 
aUi  by  fine,  and  if  the  fine  is  not  paid 
Ixy  imprisonmeat,  the  imputation  of 


unchastity  to  a  female  is  actimmMe 
per  se;  Miller  v.  Parish,  8  I'ii^k.  ,1S4; 
Mayer  v.   Schleichter,  29  \\'\».  lilii; 
Haynes   v.  Ritchey,    30  Iowa,  70;  G 
Am.  Rep.  642;  Truman  v.  Tajlcir,  4 
Iowa,    424.     And    in    several   stiiUi 
such  a  charge  is  actionable  by  stat- 
ute,—  Alabama,    California,    llliiuiij, 
Indiana,  Kentucky,  Maryland,  Midi- 
igan,    Missouri,    New    Yoik,    Ndrtli 
Carolina,  South  Carolina:  iSnialk}  ,■, 
Anderson,  2  T.  B.  Mon.  50;    1.')  Am. 
Dec.  121;  Belck  v.  Belck,  97  liul.  73; 
McMurray  v.   Martin,    107  Ind.  24ti; 
Kedrolevanskey  v.  Niebauiri,  70  Cal. 
216;McKinney  v.  Roberts,  08  Cal.  \K. 
And  it  is  actionable  in  Oliio;  liariiett 
V.  Ward,  36  Ohio  St.  107;  ^H  Am.  Hop. 
561;    Wilson  v.  Robbins,  Wriglit,  4D; 
and  Iowa:  Smith  v.  Silence,  4  Iowa, 
321;   66  Am,  Dec.   137;    and  it  ii  so 
held  in   Frisbee  v.   Fowler,  '_'  (onu, 
707;    Paterson  v.  Wilkinison,  M  .Me. 
42;    Klewiu  v.  Bauman,  53  Wis.  244; 
Reitan  v.  Goebel,  33  Minn.  I.")];  Page  | 
V.  Merwiu,  54  Conn,  426.     To  sayci 
a  woman,  "  While  she  was  out  tliiK 
claiming  to  be  A's  wife,  she  «-as  back 
here  claiming  to  be  my  wife,"  dues  uot 


2231 


SLANDER. 


§  1246 


Even  wlioro  words  of  specific  import  arc  employed 
(such  as  "thief"  or  "traitor"),  still,  if  the  dcfoiulant 
can  satisfy  the  jury  that  they  were  not  intended  to  impute 
any  specific  crime,  but  merely  as  general  terms  of  abuse, 
and  meant  no  more  than  "  rogue  "  or  "  scoundrel,"  and 
were  so  understood  by  all  who  heard  the  conversation,  no 
action  lies.'  But  if  the  by-standers  reasonably  under- 
stand the  words  as  definitely  charging  the  plaintilF  with 
the  commission  of  some  specific  crime,  an  action  lies.* 
When  it  is  apparent  that  the  defendant  intended  to 
charge  plaintiff  with  stealing,  and  that  the  charge  was 
so  understood  by  those  who  heard  it,  an  action  for  slander 
is  maintainable,  without  regard  to  whether,  technically, 
plaintiif's  act  was  a  theft  or  a  trespass  merely.'  Where 
the  by-standers  know  the  transaction  referred  to  in  the 
charge,  know  that  that  particular  transaction  is  the  one 
referred  to  as  the  ground  of  the  charge,  and  know  that 
that  transaction  was  not  a  crime  as  charged,  no  action 
for  sliindor  can  be  maintained;  but  if  the  hearers  under- 
stood the  defendant  to  repeat  the  charge  without  reference 
to  the  transaction  as  understood  by  them,  and  upon  what 
he  might  assume  to  know  beyond  their  knowledge,  then 
the  words  would  be  actionable.* 

Words  which  merely  impute  a  criminal  intention  not 
yet  put  into  action   are  not  actionable.®     But  as  soon  as 


impute  a  want  of  chastity,  and  is  not 
actionable  per  se:  Funk  v.  Beverly, 
112  liul.  I'JO.  In  Iowa  it  has  been 
iiekl  actiouahlo  to  charge  a  woman 
with  liaving  had  intercourse  with  a 
beast:  llayiios  v.  Ilitchey,  30  Iowa, 
76;  (i  Am.  Rup.  G42;  and  in  Ohio  to 
charge  a  woman  with  being  a  herinaph- 
roditu:  JIalone  v.  Stewart,  15  Ohio, 
319;  45  Am.  Dec.  577.  The  words, 
"She  has  been  lying  on  the  lounge  with 
a  male  boarder, "  spoken  of  a  married 
woman,  do  not  amount  to  a  charge  of 
fornication  or  adultery  within  the  Illi- 
nois statute,  and  are  not  actionable: 
Koch  r.  Heidcman,  16  111.  App.  478. 
'  Shccut  V.  McDowell,   3  Brev.  38; 


5  Am.  Dec.  53G;  Brito  v.  Gill,  2  T.  B. 
Mon.  Go;  15  Am.  Dec.  122;  Tamer  v. 
Anderson,  33  Ala.  78;  Quinuc.  O'Oara, 
2  E.  D.  Smith,  388;  Fawsett  v.  Clark, 
48  Md.  494;  30  Am.  Rep.  4Sl. 

'•'  Odgeraon  Libel  and  Sander,  GO. 

"Wilson  V.  McCrory,  8G  In.l.  170. 

♦  Carmichael  v.  Shiel,  21  Ind.  66; 
McCaleb  v.  Smith,  22  Iowa,  242; 
Pegram  v.  Styron,  1  Bail.  595;  Brown 
V.  Myers,  40  Ohio  St.  99;  Stitzell  v. 
Reynolds,  67  Pa.  St.  54;  5  Am.  Rep. 
396. 

"McKee  v.  Ingalls,  5  111.  30;  Wil- 
son  V.  Tatum,  8  Jones,  300;  Seaton  v. 
Cordray,  Wright,  101;  Hotchkiss  V, 
Olmstead,  37  lad.  74. 


124G 


SLANDER   AND   LIBEL. 


2232 


any  stop  is  taken  to  carry  out  such  intention,  as  soon 
as  any  overt  act  is  done,  an  attempt  to  commit  a  criino 
has  been  made;  and  every  attempt  to  commit  an  indict- 
able  oflense  is  at  common  law  a  misdemeanor,  and  in 
itself  indictable.  To  impute  such  au  attempt  is  therefore 
actionable.* 

Words  which  merely  disclose  a  suspicion  that  is  in  the 
speaker's  mind,  and  which  the  by-standers  could  not 
understand  as  conveying  any  definite  charge  of  fokmy, 
are  not  actionable.^  So  where  tlie  words  are  so  expluiiud 
and  qualified  as  not  to  leave  with  the  hearers  a  slanderous 
impression;^  as  where  a  lessor  accused  his  lessee  of  steal- 
ing corn,  at  the  same  time  explaining  to  his  hearers  that 
the  crop  was  security  for  the  payment  of  the  rent,  and 
showing  that  the  speaker  honestly  believed  a  clandestine 
appropriation  thereof  by  the  lessee  before  a  certain  date 
to  be  larceny,  and  not  merely  a  breach  of  trust."*  But  a 
charge  need  not  be  direct  and  positive;  it  is  sufficient 
that  from  it  the  imputation  of  criminality  may  bo  in- 
ferred.   Expressing  suspicion  or  speaking  ironically  or  by 


'Harriaonv.  Stratton,  4  Esp.  217; 
Berdeanx  v.  Davia.  58  Ala.  611. 

» Tozei-  V.  Mashford,  6  Ex.  539;  20 
L.  J.  Ex.  225. 

*  III  Trabue  v.  Maya,  3  Dana,  138, 
28  Am.  Dec.  61,  the  court  aays: 
"If  a  charge  be  made  which  amounta 
to  slauder,  it  may  bo  retracted,  quali- 
fied, or  explaiued  iu  the  same  cou- 
versation  and  before  the  peraona 
separate  before  whom  it  ia  made, 
showing  that  it  docs  not  amount  to 
slauder.  So  to  say  of  a  man  that  he 
is  a  murderer,  but  afterward,  be- 
fore the  individuals  separate  in  whose 
hearing  the  charge  is  made,  to  qualify 
the  charge  by  stating  that  he  mur- 
dered a  hare,  ia  not  slander;  for  no 
impression  is  left  upon  the  minda  of 
the  hearers  that  he  was  guilty  of  the 
crime  of  murder.  So  to  say  of  an  in- 
dividual that  he  stole  a  horse,  and 
afterward,  in  the  same  conversation, 
to  explain  away  the  imputation,  so  as 
to  show  to  the  hearers  that  he  meant 


only  to  leave  the  impression  ou  their 
minds  that  ho  was  guilty  nf  a  hrwicli 
of  trust,  and  not  of  a  felony,  is  not 
slanderous;  or  if  in  a  case  Hku  the 
above  lie  revokes  the  charge  altogether 
in  the  hearing  of  the  company,  ami 
before  they  or  any  of  tlioni  scpiirate; 
or  if  lie  makea  tlie  charge  a^i  iu  the 
above  case,  and  some  other  individual 
who  is  presumed  to  know  more  about 
it  ia  called  upon  and  makes  an  ex- 
planation of  the  circumstaucea  relat- 
ing to  the  ofiFense  charged,  wiiicii 
shows  that  the  taking  of  the  horse  was 
not  felony,  and  he,  in  the  i)resencc 
and  hearing  of  the  same  company,  and 
before  they  or  any  of  tlieni  separate, 
adopts  the  explanation,  and  retraets 
or  qualifies  the  charge,  in  suuli  iiiaunor 
as  to  leave  no  impression  of  an  impu- 
tation of  crime  to  the  person  cliariien 
on  the  minds  of  the  hearers, — he  would 
not  be  guilty  of  8lan<ier. " 
*  Hall  V.  Adkins,  59  Mo.  144. 


2233 


SLANDER. 


§1246 


way  of  comparison  or  interrogation  may  make  one  guilty 
of  Hliindor.* 

Whore  a  crime  is  charged  which  it  is  impossible  that 
tho  i)laintifF  could  have  commiUod,  and  all  who  iieard  the 
charge  must  know  it,  it  is  not  actionablo."  Thus  it  is 
not  actionable  to  say,  "  You  stole  my  land,"  for  a  person 
cannot  steal  realty,  he  can  only  trespass  on  it;*  or  to 
charge  one  with  stealing  trees,*  or  marl,*  or  a  wild  ani- 
mal not  tho  subject  of  larceny,"  or  windows  from  a  house,'' 
or  that  he  "robbed"  a  town,*  or  "committed  perjury," 
whore  the  oath  was  made  in  an  extrajudicial  proceeding," 
01  was  upon  an  immaterial  fact,  and  therefore  not  indict- 
nble.'"  In  an  old  case,  tho  words  complained  of  were  "thou 
hast  killed  my  wife,"  but  the  by-standers  knew  that  his 
wife  was  still  alive,  and  this  was  therefore  not  actionable." 
So  where  a  person  was  accused  of  stealing  his  own  prop- 
erly.*' So,  in  an  English  case,  it  was  held  not  actionable 
for  A  to  charge  a  man  who  is  not  A's  clerk  or  servant 
with  embezzling  A's  money;  for  no  indictment  for  em- 
bezzlement would  lie."  If,  at  the  time  of  tho  utterance 
of  the  alleged  slanderous  words,  the  person  concerning 
whom  they  are  spoken  is  not  liable  to  an  infamous 
punishment  by  reason  of  the  offense  charged,  tho  words 
are  not  per  se  actionable."    So  a  charge  of  perjury  is  not 


'  Waters  v.  Jones,  3  Port.  442;  29 
Am.  Dec.  2G1. 

^  In  ludiaua,  where  the  words  were, 
"Tliaulc  (iotl,  if  my  daughters  did  have 
bastards,  they  never  had  pups.  She 
[the  plaiutiff]  did  have  pups,  and  I 
can  i)r(we  it," — it  was  held  that,  even 
tliougli  connection  between  a  woman 
and  dog  and  conception  might  be  im- 
possible, tho  people  are  not  presumed 
to  kuow  scientific  facts,  and  the  words 
were  actionable:  Ausman  v.  Veal,  10 
Iml.  ;iS5;  71  Am.  Dec.  331. 

'  Stitzell  V.  Reynolds,  67  Pa.  St.  55; 
5  Am.  Kep.  390;  Ogden  v.  Riley,  14 
N.  J.  L.  186;  25  Am.  Dec.  513. 

•  Cock  V.  Wetherby,  5  Smedes  & 
M.  333. 


*  Ogden  V.  Riley,  14  N.  J.  L.  186; 
25  Am.  Dec.  513. 

«  Norton  v.  Ladd,  5  N.  H.  203;  20 
Am.  Dec.  573. 

'  Wing  V.  Wing,  66  Mo.  62;  22  Am. 
Rep.  548. 

8  McCarty  v.  Barrett,  12  Minn.  494. 

•  Hall  V.  Montgomery,  8  Ala.  510; 
Dalton  V.  Higgins,  34  Oa.  433;  Hamm 
V.  Wickline,  26  Ohio  St.  81. 

"  Darling  v.  Banks,  14  111.  46;  Rosa 
V.  Rouse,  1  Wend.  475. 

"  Suagr.  Gee,  4  Rep.  16;  Homing  v. 
Power,  10  Mees.  &  W.  5159. 

"Jackson  V.Adams,  2  Biug.  N.C.  402. 

"  WiUiams  v.  Stott,  1  Cromp.  &  M. 
675;  3  Tyrw.  688. 

"  Pegram  v.  Stoltz,  76  N.  C.  349. 


§1246 


SLANDER  AND   LIBEL. 


2234 


actionable  where  it  is  alleged  to  have  been  committed  in 
a  proceedinqj  where  false  swearing  is  not  legally  punish- 
able/  or  before  a  magistrate  not  having  jurisdiction.'^ 

But  it  is  actionable  to  charge  a  man  with  committing 
a  crime  the  corpus  of  which  never  existed/  if  it  is  a  pos- 
sible crime;*  as,  accusing  a  man  of  the  murder  of  a  person 
who  was  alive  (if  the  by-standers  did  not  know  it);^  or  of 
a  perjury  in  a  proceeding  which  never  took  place,  or  i.^ 
which  the  plrantifF  was  not  a  witness.®  In  an  action  for 
slander,  in  charging  plaintiff  with  having  burned  his 
property  to  defraud  insurers,  proof  of  actual  insurance  is 
not  necessary,  the  fact  of  insurance  being  immaterial' 
An  -iction  of  slander  will  lie  for  words  imputing  to  a  wife 
the  commission  of  a  felony  jointly  with  her  husband,  but 
not  in  his  presence.* 

Where  the  offense  is  charged  to  have  been  committed 
in  a  foreign  state  or  country,  the  words  will  be  action- 
able if  it  was  one  punishable  by  indictment  in  that 
place,  and  involving  moral  turpitude.*  If  the  offense 
was  one  indictable  at  common  law,  it  will  be  presumed 
to  be  indictable  everywhere,  but  if  it  be  a  statutory  of- 
fense, the  statute  of  the  foreign  state  must  be  pleaded 
and  proved.^"  Where  the  words  were  spoken  in  another 
state,  and  charge  an  offense  not  indictable  in  that  state, 
they  are  not  actionable  in  the  state  where  the  suit  was 


»  Pegram  v.  Stoltz,  76  N.  C.  349; 
Bur'.ett  V.  McCartliy,  10  Bush,  758. 

2  Hamni  v.  Wickliiie,  26  Ohio  St. 
81. 

^  Colbert  v.  Cahlwell,  3  Grant  Oas. 
181;  Kennedy  r.  Gifford,  19  Wend. 
296;  Carter  v.  Andrews,  16  Pick.  1. 

*  Rea  V.  Harrington,  58  Vt.  181;  56 
Am.  Rep.  561. 

*  Sugart  V.  Carter,  1  Dev.  &  B. 
8;  Eckart  v  \7ilson,  10  Serg.  &  R.  44; 
Sellings  V.  IM.wniar  26  Ala.  300;  62 
Am.  Dec.  723. 

«  Bricker  v.  Potts,  12  Pa.  St.  200; 
Holt  V.  Turpin,  78  Ky.  433.  In  Sny- 
der V.  De  Gant,  4  lad.  578,  it  was  held 
that  iu  an  action  for  alaudering  the 


plaintiflf  by  charging  him  witli  perjury 
at  a  certain  trial,  it  was  a  good  de- 
fense to  show  that  he  was  not  ^\vora 
at  the  trial.  But  this  caae  was  prob- 
ably o  ,'erruled  in  Ausman  v.  Vual,  10 
Ind.  o55;  71  Am.  Dec.  331. 

'  Fowlnr  v.  Gilbert,  38  Mich.  292. 

«  Nolan  V.  Traber,  49  Md.  4(10;  .33 
Am.  Rep.  277. 

'  Shipp  V.  McCraw,  3  Murph.  463; 
9  Am.  Dec.  610. 

'•  Townshend  on  Slander  and  Libel, 
110;  Bundy  v.  Hart,  46  Mo.  4(50;  '2  Am. 
Rep.  525;  Shipp  v.  McCraw,  3  Murph, 
463;  9  Am.  Dec.  611;  Wall  v.  Hoskiiis, 
5  Ired.  177;  Klumph  v.  Dumi,  60  Pa. 
St.  141;  5  Am.  Rep.  355. 


2235 


SLANDEB. 


§1247 


nitted  in 
|r  punish- 
ition.'' 
mmitting 
t  is  a  pos- 
f  a  person 
it);^  or  of 
ace,  or  i.» 
action  for 
»urne(l  his 
isurance  is 
amaterial' 
ig  to  a  wife 
isband,  but 

committed 
be  action- 
lilt   in   that 
the   offense 
e  presumed 
atutory  of- 
be  pleaded 
in  another 
I  that  state, 
he  suit  was 

lim  with  perjury 
was  a  good  Ju- 

vas  iHit  >^\vnrn 
J  case  was  l»'o'^- 
man  v.  V>;iil,  ^ 
.  331. 

38  Midi.  292. 
49  Mil.  ■if'O;  33 


brought,  though  the  ojffense  is  indictable  there.^  Whether 
words  charging  an  offense  are  slanderous  per  so  does  not 
depend  on  the  law  of  the  state  where  they  are  spoken, 
but  on  that  of  the  state  where  the  act  is  alleged  to  have 
taken  place.^  In  an  action  for  slanderous  words  spoken 
in  Pennsylvania,  and  charging  the  commission  of  adul- 
tery in  Georgia,  it  was  held  that  the  words  charging  an 
offense  of  moral  turpitude  punishable  by  the  law  of  the 
state  wliore  they  were  uttered  were  actionable  jjc?"  se.^ 
An  action  of  slander  is  not  taken  away  though  the  stat- 
ute creating  the  offense  charged  is  repealed.* 

Illustrations. — The  words  imputed  an  offense  against  the 
fishery  acts,  punishable  only  by  fine  and  forfeiture  of  the  nets 
and  instruments  used.  Held,  that  no  action  lay,  witliout 
nroof  of  special  damage:  McCabe  v.  Foot,  18  lusli  Jur.  9  N.  S. 
287;  15  L.  T.  115.  A  says  of  B:  "  Slie  is  a  bad  woman;  she 
takes  medicine  and  kills  her  children."  In  the  place  where 
the  words  are  spoken,  to  cause  or  j)rocurc  abortion  before  the 
child  is  quick  is  not  a  criminal  offense.  Held,  not  actionable 
per  se:  Abrams  v.  Foshee,  3  Iowa,  274;  G6  Am.  Dec.  77;  Smith  v. 
Gafford,  31  Ala.  45;  but  see  Miles  v.  Vanhorn,  17  Ind.  245;  79 
Am.  Dec.  477;  Bissell  v.  Cornell,  24  Wend.  354.  A  statute 
made  it  an  offense  punish  '  de  by  fine  and  imprisonment  to 
knowingly  furnish  watered  lilk  to  a  factory  to  be  made  into 
butter.  The  defendant  charged  the  plaintiff'  with  watering  his 
milk  which  he  sold  to  his  factory.  Held,  actionable:  Geary  v. 
Bennett,  53  Wis.  444. 

§  1247.  Imputing  Contagious  Diseai'>. — Words  im- 
puting to  the  plaintiff  that  he  has  an  infectious  or  con- 
t<\gious  disease  are  actionable  without  proof  of  special 
damage,  the  reason  given  being  that  the  natural  effect  of 
such  a  charge  is  to  cause  the  party  to  be  shunned,  and  to 
exchide  him  from  society.®  Such  disease,  it  is  said  in 
England,  may  be  either  leprosy,  venereal  disease,  or  the 


'  Stout  V.  Wood,  1  Blackf .  71 ;  Bar- 
clay  ,'.  Thompson,  2  Pa.  148;  Offutt  v. 
Early  wine,  4  Blackf.  4G0;  32  Am.  Dec. 
40;  Latigdon  v.  Young,  33  Vt.  136; 
Eluinpli  V.  Dunn,  66  Pa.  St.  141;  6 
Am.  Rep.  355. 


»  Dufresno  v.  Weise,  46  Wis.  290. 
"Kluniph  V.  Duim,  6()  Pa.  St.  141; 
5  Am.  Rep.  .S.")."). 

♦  French  v.  Croath.  1  111.  31. 

*  Cooley  on  Torts,  200. 


§1248 


SLANDER   AND   LIBEL. 


223G 


plague,  but  not  the  itch,  the  falling-sickness,  or  the  small- 
pox.* But  Judge  Cooley  says:  "  What  diseases  would  ])e 
embraced  within  this  rule  is  not  certain,  but  it  is  probable 
that  at  the  present  day  only  those  which  are  contagious 
or  infectious,  and  which  are  also  usually  brought  upon 
one  by  disreputable  practices;  and  the  list  would  perhaps 
be  limited  to  venereal  diseases.'"^  It  is  essential  that  the 
charge  should  impute  the  existence  of  the  diseaso  at  the 
time  it  is  made.'  Thus  a  charge  that  "he  has  not  been 
able  to  do  any  work  for  the  last  three  or  four  years;  that 
he  was  about  dead  with  the  bad  disease,"  is  not  action  iblc, 
for  "was"  means  the  past.^  "Any  words  which  the 
hearers  would  naturally  understand  as  conveying  that 
the  plaintiff  then  has  such  a  disease  are  suflBcient.  Many 
distinctions  are  drawn  in  old  cases  about  the  pox,  a  word 
which  may  imply  either  the  actionable  syphilis  or  the 
more  harmless  small-pox.  It  has  been  decided  that  *  he 
has  the  pox '  (simpliciter)  shall  be  taken  to  mean  *  he  has 
the  small-pox',*  but  that  if  any  other  words  be  used  re- 
ferring to  the  effects  of  the  disease,  or  the  way  in  which 
it  was  caught,  or  even  the  medicine  taken  to  cure  it, 
these  may  be  referred  to  as  determining  which  pox  was 
meant."  ^ 


§  1248.  Slander  in  One's  Calling  or  Office.  — Words  are 
actionable  when  spoken  of  persons  touching  their  respect- 
ive offices,  professions,  trades,  or  business,  and  do  or  may 


'  Odgors  oil  Lil)cl  and  Slander,  G3; 
TayUir  v.  I'orr,  liiUe  Abr.  44;  Taylor 
V.  Porkiii8,  C"ro.  Jac.  144;  Villers  v. 
Mousley.  2  Wils.  403. 

■'  Cooley  on  Torts,  201 ;  Watson  v. 
McCartliy,  2  Ga.  57;  47  Am.  Dec. 
.380;  Irons  v.  Field,  9  R.  I.  216; 
Nicliol-i  ('.  (ruy,  2  Ind.  82;  Kaucher 
V.  Blum,  29  Ohio  St.  62;  23  Am.  Rep. 
737;  Willianw  v.  Holdredge,  22  Barb. 
396;  Hewit  v.  Mason,  24  How.  Pr. 
366;  Joannes  v.  Burt,  6  Allen,  236;  83 
Am.  Doc.  625;  Upton  v.  Upton,  N.  Y. 
Sup.  Ct.,  Ibtti). 


3  Taylor  v.  Hall,  2  Stran-e,  1189; 
Williams  v.  Holdredge,  22  B;ul).  SDii; 
Carshiko  v.  Mapledoram,  2  Tirui  Hup. 
473;  Nichols  v.  Guy,  2  Ind.  82;  Bnice 
V.  Soule,  69  Me.  572;  Piko  r.  Vim 
Wormer,  5  How.  Pr.  171. 

*  Bruce  v.  Soule,  69  Me.  i)72. 

''  Odgers  on  Libel  and  Slaudur,  G3. 
Whether  to  say  of  a  woman  tluit  she 
has  a  "  bad  disease  "  is  oc^uivakut  tn 
charging  her  with  having  a  vtiioroal 
disease,  or  imputing  to  her  want  of 
chastity,  is  for  the  jury:  Upton  v. 
Upton,  N.  Y.  Sup.  Ct.,  1889. 


2237 


SLANDER. 


1249 


le  sraall- 

VOUUI   1)6 

probable 
)nta;^ious 
rht  upon 
1  pcrbaps 
1  tbat  the 
ISO  at  the 
not  been 
ears;  that 
ictioipiblo, 
tvhicU  the 
;vin^"  that 
nt.    Many 
ox,  a  word 
.ills  or  the 
•d  that '  he 
an  *  ho  has 
be  used  re- 
,y  in  whic4i 
to   cure  it, 
ch  pox  was 

-"Words  are 
leir  respect- 
i  do  or  may 


probably  tend  to  their  damage.*  The  reasons  for  this  rule 
are  said  to  be  two:  1.  That  from  the  nature  of  the  case 
damage  must  necessarily  ensue ;^  and  2.  That  a  person 
might  bo  effectually  ruined  in  his  business  by  the  publi- 
cation of  the  slander  before  his  proof  of  special  damage 
could  be  completed.' 

§  1249.    Office  or  Galling  may  be  of  Any  Kind.  —  The 

office  may  be  an  honorary  one;  it  is  not  essential  that  it 
be  one  of  profit  to  the  holder.*  So  if  he  act  in  the  em- 
ployment and  derive  emolument  therefrom,  his  calling 
may  be  exalted  or  humble,  his  only  means  of  livelihood 
or  one  of  several.^  Thus  S.  was  a  farm-servant  and  bailiff 
!'  J.  S.  B.  said  of  him:  "Thou  art  a  cozening  knave, 
.  1  hast  cozened  thy  master  of  a  bushel  of  barley."  The 
court  held  that,  "True  it  is,  generally  an  action  will  not  lie 
for  calling  one  'cozening  knave,'  yet  where  the  words  are 
spokni  of  one  who  is  a  servant  and  accomptant,  and 
whose  credit  and  mi  intenance  depends  upon  his  faithful 
dealing,"  it  will.®  T.  was  a  lime-burner,  and  H.  said  of 
him:  "He  is  a  cheating  knave  of  a    lime-burner."     A 


nil! 


1  Tliis  is  about  the  language  used  by 
DeGiey,  C.  J.,  instating  the  rule  in 
Onslow  V.  Home,  3  Wila.  177.  It  was 
criticised  by  Bayley,  J.,  in  Lumby  v. 
AlM.iy,  1  Cronip.  &  J.  30,  who  con- 
sidered the  word  "probaldy"  too  in- 
definite and  loose,  and  suggested  the 
phrase  "having  a  natural  tendency 
to "  ill  it.4  stead,  adopting  the  latter 
words  himself  two  years  later  in  Sib- 
ley r.  Touilins,  4  Tyrw.  90.  But  in 
James  ?•.  Brook,  9  Q.  B.  7,  Williams, 
J.,  iiiM'tineutly  asked,  "How  is 
'uatnrul'  tendency  stronger  thti 
'proi).il)l(j '  ?  "  and  it  would  seem  that 
rule,  iis  stated  above,  is  as  precise  iis 
laiiu'iiige  can  make  a  general  rule. 

'  MeMnllan  v.  Birch,  1  Binn.  187; 
2  Am.  Dee.  426. 

'Stiukiu on  Slander,  110. 

*Odi;or,s  on  Libel  and  Slander,  64. 

'  Whittaker-y.  Bradley,  7  Dowl.  &  R. 
649;  Gates  v.  Bowker,  18  Vt.  23; 
Secuiau  v.  Bigg,  Cro.  Car.  480.     Sev- 


eral  English  cases  conflict  with  this 
stptemont.  Thus  in  an  old  one  a 
school-mistress  was  charged  with  be- 
ing a  whore,  and  the  court  held  that 
such  a  profession  was  not  an  occupa- 
tion within  the  protection  f-i  this  ex- 
ception to  the  ordinary  rules  as  to 
slander:  Wharton  r.  lirook,  1  \ent. 
21.  The  same  was  held  of  a  Isssee 
and  reujer  of  turnpike  tolls  in  a  later 
case:  Bellamy  v.  Bureh,  l(i  Mee.-5.  & 
W.  26;  Sellers  v.  Killew,  7  Dowl.  ife 
R.  121;  of  a  .«tock-johber  of  another: 
Morris  v.  Langdale,  2  Bos.  &  P.  287; 
and  of  a  letter-carrier  in  another:  Bell 
V.  Thatcher,  1  Vent.  275.  But  these 
cases  would  not  be  followed  in  the 
United  States.  Our  courts  have  not 
one  rule  for  the  rich  anil  another  for 
the  poor;  and  the  humility  of  the  em- 
ployment is  no  objection  to  tiie  action: 
See  Wilson  v.  Runyon,  Wright,  65. 
"  Seaman  v.  Bigg,  Cro.  Car.  480. 


§  1250 


SLANDER   AND   LIBEL. 


2238 


divided  court  held  that  T.  could  recover;  for  "an  action 
lies  for  speaking  scandalous  words  of  a  limo-burncr,  or  of 
any  man  of  any  trade  or  profession,  be  it  ever  so  base,  if 
they  aro  spoken  with  reference  to  his  profession."'  C. 
was  "  engaged  in  the  wooden-ware  business,"  and  D.  said 
of  him:  "You  are  a  cheat."  It  was  contended  that  the 
general  rule  was  not  applicable  to  such  dealers  as  C.  But 
the  court  thought  otherwise.^  D.  was  a  husbandman.  T. 
said  of  him:  "He  owes  more  money  than  he  is  worth;  he 
is  run  away,  and  is  broke";  and  the  action  was  sus- 
tained.^ 0.  was  a  carpenter,  and  words  similar  to  those 
in  D.'s  case  were  sp.  ken  of  him,  and  the  action  was  sus- 
tained."*  B.  was  a  blacksmith,  and  N.  said  of  him:  "lie 
keepv  false  buoks."  The  words  were  held  actionable.'  B. 
was  an  auctioneer,  and  had  been  employed  by  M.  to  sell 
his  goods.  L.  retained  B.  to  appraise  the  same  goods  for 
him,  and  subsequently  said  of  B.:  "He  is  a  dananed  ras- 
cal;  ho  has  cheated  me  out  of  one  hundred  and  nine 
pounds  on  the  valuation."*     This  was  held  actionable. 

§  1250.  Illegal  Occupations.  —  But  the  calling  must 
be  a  legal  one:  courts  will  not  protect  the  breakers  of  the 
law  from  injuries  to  their  pockets  or  reputation.  Thus  in 
one  case  H.  was  the  proprietor  of  a  building  in  '.vhich 
pugilistic  exhibitions  were  conducted,  such  exhibitions  ]?o- 
ing  illegal.  Ho  brought  an  action  against  B.  for  hireling 
him  in  his  vocation.  It  was  held  that  he  could  not  re- 
cover." In  another,  D.  was  a  "cancer-doctor,"  but  was 
neitlicr  a  regular  physician  or  surgeon,  nor  licenpcd  to 
practice  as  required  by  the  laws  of  the  state.  ^I.  charged 
him  with  having  killed  a  woman,  and  with  inalpractioo, 
The  court  held  that  D.  could  not  maintain  an  action,  uii- 
less  the  words  charged  him  with  having  comiaitted  aii 

'  Terry  ?'.  Hooper,  1  Lev.  115.  •'^  Burtch   v.    Nickcnum,    17  Jdhiis. 

2  C'.irpenter  r.  Dennis,  '^  Sand.  305.  217;  8  Am.  Dec.  :^iH). 

*  Dobsoni).  Thornistoue,  3  Mod.  112.  *  Bryant  v.  Loxtoii,  1 1  Mdoic,  314. 

*  Chapman  v.  Lamphire,  3  Mod.  155.  '  Hunt  v.  Bell,  1  Biug.  1. 


2238 


2239 


SLANDER. 


§1250 


an  action 
•nor,  or  of 
so  base,  if 
ion."^     C. 
ud  D.  said 
i  that  the 
asC.   But 
idman.    T. 
worth;  he 
a  was  sus- 
ar  to  those 
oil  was  sus- 
'him:  "He 
louublc.''  B. 
)y  M.  to  soil 
iie  goods  for 
lamucd  ras- 
d   and  niuo 
ctionable. 

;aUing  must 
sakcrs  of  the 
on.  Til  us  ill 
ng  iu  which 

ubitionsbo- 
.  for  libeling 
could  not  re- 
31-,"  but  was 
r  licenscil  to 
"M.  charged 

malpractice. 
m  action,  un- 
omiaitteil  an 


offense  involving  moral  turpitude  or  subjecting  him  to  an 
infamous  punishment.^     In  an  action  by  M.,  a  manufac- 
turer of  bitters,  against  C,  for  charging  that  his  bitters 
were  made  to  adulterate  porter,  C.  was  allowed  to  prove 
that  M.'s  trade  was  illegal,  and  that  his  bitters  had  been 
condemned  in  the  court  of  exchequer.^     In  another  case, 
C.  said  of  D.  that  he  was  a  quack,  an  impostor,  and  an  un- 
qualified person.     D.  was  at  the  time  unlawfully  carrying 
on  the  practice  of  medicine.     The  words  were  held  not 
actionable.'  But  fraud  and  illegality  are  never  presumed, 
and  hence  the  court  will  infer  that  the  plaintilF's  occupa- 
tion is  legal  until  it  is  proved  otherwise.''    In  a  Now  York 
case  the  manager  of  an  Italian  opera  company  which  gave 
performances  at  the  Astor  Opera  PIousc  in  New  York  dur- 
ing the  season  of  1848  sued  the  proprielor  of  the  New 
York  Herald  for  a  criticism  on  the  perforjnances,  which 
amounted  to  a  libel.     It  was  held  not  necessary  that  the 
plidntilf  should  aver  and  prove  that  he  was  duly  licensed 
to  give  operatic  representations  as  required   by  statute.* 
And  though  a  party  engaged  in  an  illegal  occupation  can- 
not maintain  any  action  for  slanderous  words    directed 
against  him  in  that  occupation,  yet  if  the  words  concern 
him  as  an  individual,  or  in  another  and  legal  occupation, 
an  action  will  lie.^ 


uir.itu.    17   •Toluis. 
i]  \  1  Moore,  314. 


'  March  v.  Davison,  9  Paige,  581. 

^  il.uiuiug  ?,'.  Clement,  7  Bing.  362. 

'  Collins  V.  Carnegie,  1  Atl.  &  E. 
695. 

•  Fry  V.  Bennett,  28  N.  Y.  324. 

"  Fry  V.  Bennett,  28  N.  Y.  324. 

^  Grevillo  t\  Chapman,  1  Dav.  Sc  M. 
553;  Cliciiery  r.  Goodrich,  98  Mass. 
2'24,  the  court  saying:  "  If  the  con- 
duct of  the  plaintiff  in  connection 
with  the  transaction  to  which  the  pub- 
lication relates  was  open  to  comment 
ami  criticism  for  the  reason  that  he 
participated  in  acts  which  were  con- 
trary to  law,  and  in  consequence 
thereof  no  action  can  bo  maintained 
for  a  libelous  publication  which  relates 
eok'ly  to  the  plaintiffs  connection 
with  such  unlawful  acts,  nevertheless 


there  is  .i  limit  beyond  which  such 
immunity  from  liability  for  defama- 
tory words  caunf)t  l)o  carried.  Unless 
the  matters  set  forth  iu  a  declaration 
are  of  a  nature  wliiuh  indicates  that 
the  plaintiff's  acts  and  conduct  in  con- 
nection therewitli  necessarily  involved 
moral  turjjitude,  or  miglit  fairly  be 
held  to  affect  his  general  character 
in  any  particular,  a  publication  which 
held  a  party  up  to  contempt  and 
reproach  as  wanting  in  integrity,  or 
as  otherwise  culpable  in  his  general 
conduct  or  character,  woubl  bo  ac- 
tionable, althougli  it  mif;ht  al>io  relate 
to  the  plaintiff's  particip.ilion  in  an  il- 
legal transaction.  A  person  does  not 
necessarily  forfeit  all  legal  claim  to 
protection  against  defamatory  matter 


§1250 


SLANDER  AND   LIBEIL. 


2240 


Illustrations.  —  Y.  was  appointed  by  the  members  of  a 
revolutionary  government  in  Chili  to  negotiate  a  loan  for  it.  C. 
charged  him  with  saddling  the  government  of  Chili  with  a 
large  debt  for  his  own  benefit.  Held,  that  an  action  by  Y. 
against  C.  was  sustainable:  Yrisarri  v.  Clement,  2  Car.  &  V.  223.' 
A.  was  the  owner  of  race-horses  which  he  ran  on  the  turf.  Ho 
had  entered  a  horse  for  the  Derby  stakes,  but  before  the  race, 
on  account  of  his  lameness,  he  was  withdrawn.  B.  charged  A. 
with  entering  the  horse,  and  afterwards  withdrawing  him  for 
the  purpose  of  getting  an  unfair  advantage  over  parties  with 
whom  he  had  heavy  igers  on  the  result  of  the  race.  //(■/(?, 
that,  even  though  h  )rse-racing  was  illegal,  A.  could  recover: 
Greville  v.  Chapman,  1  Dav.  &  M.  553.  C.  was  a  merchant,  and 
having  entered  a  cargo  of  rum  at  the  custom-house,  delivered 
it  to  the  storekeeper  the  next  day  for  warehousing;  paid  the 
duties  on  it  the  following  day,  taking  it  on  an  order  two  days 
later.  By  mistake,  a  wrong  receipt  was  given  to  him,  wliich, 
on  his  subsequently  applying  to  withdraw  the  goods,  called 
for  double  duties.  He  thereupon  presented  the  true  facts  to  the 
storekeeper,  who  corrected  the  receipt,  when  he  paid  the  ordi- 
nary duties  on  the  goods,  and  was  given  a  permit  to  withdraw 
them.  This  was  subsequently  revoked  by  the  collector,  and  C. 
paid  double  dues  under  protest.  G.,  referring  to  the  transac- 
tion, charged  that  C.  had  fraudulently  induced  the  storckotper 
to  alter  the  receipt,  and  that  he  was  devoid  of  commercial 
honor.  Held,  that  an  action  would  lie:  Chenery  v.  Goodrich, 
98  Mass.  224. 


affecting  his  character  because  he  has 
been  guilty  of  a  sIhljIu  illegal  act.  Now, 
although  the  plaintiff,  acting  on  cer- 
tain facts,  and  in  conformity  to  what 
ho  supposed  to  be  the  law  and  usage 
in  similar  cases,  may  have  committed 
a  violation  of  law,  or  participated  in 
the  illegal  act  of  another,  it  by  no 
means  follows  that  liis  general  char- 
acter for  connnorcial  integrity  and  fair 
dealing  wastlierehy  forfeited  or  so  far 
affected  that  lie  could  not  maintain  an 
action  for  a  [lublication  which  held  him 
up  to  the  pulilic  as  wanting  in  the  quali- 
ties and  chiiracteristicsof  a  merchant  of 
integrity  ;wil  honor.  Such,  we  think, 
was  the  fair  import  ()f  a  portion  of  the 
written  words  which  are  set  forth  in 
the  declaration.  For  the  publication 
of  these,  :liis  action  can  be  maintained, 
althoogh  it  may  be  alao  true  that  it 
appt^rs  from  the  ileelaratiou  that  the 
paliilicatioa   related  cu   the   plaintiff's 


conduct  in  a  transaction  which  was 
unlawful." 

'Best,  C.  J.,  saying:  "I  li.ivo  no 
hesitation  in  acceding  to  the  ludi.osi- 
tion  that  the  transaction  was  iUejial. 
No  foreigner  has  a  right  to  act  us  tliiij 
plaintiff  has  acted  without  tlio  m  in.is- 
sion  of  our  government,  bueau.-iu  .such 
a    transaction    might   have    involved 

us   in   a   M'ar   with    Spain If 

that  whaoh  is  charged  as  being  a  libel 
had  consisted  merely  of  oli.servntions 
as  to  tht;  extreme  absurdity  ami  ille- 
gality of  such  transactions,  tlinugh 
such  observations  had  been  eoiicheil  in 
the  strongest  terms,  yet  if  they  were 
expressed  honestly,  I  should  have  no 
hesitation  in  saying  that  tin'  action 
coulu  not  be  maintained;  Inu  it  gnea 
beyond  that,  and  imputes  to  tiio  plain- 
tiff the  commission  of  a  moral  iraud; 
and  for  such  an  imputatiuu  I  am  of 
opinion  that  he  is  entitled  to  recover." 


2240 


2241 


SLANDER. 


§1251 


bcrs  of  a 
for  it.  C. 
li  with  a 
ion  by  Y. 
&  P.  22V 
turf,    lie 
)  tho  race, 
jharginl  A. 
ig  hiui  for 
:irties  with 
ICC.     Hchl, 
Id  recover: 
rchant,  and 
c,  delivered 
g;  paid  the 
er  two  tlays 
him,  which, 
oods,  called 
!  facts  to  the 
lid  tho  ordi- 
to  withdraw 
3ctor,  and  C. 
the  transac- 
3  storclcocper 
j  commeroial 
V.  Goodrich, 


tiou  which  waa 

g;  ««I  h.'ivc  no 
to  tho  proposi. 
iouvas  illegal. 
ht  to  act  iii  this 
lout  tlui  iM  ■>■"''*■ 
ut,  bccaiirtu  such 
have    iiivolved 

ipain.  •  •  •  ■^[ 
as  beiugalibd 
of  ol».scr\Mtionj 

irtlity    ami  ille- 

sactious,  tlumgh 
beeiieoiu'hiiiliu 

fot  li  tii''y  were 
shouhl  li;ivc  uo 
that  til.'  ;ietiou 
neil;  Init  '.t  i^'iea 


§1251.    Past  Holding  or  Pursuit  Insufficient— Tho 

complainant  must  have  held  the  office  or  carried  on  the 
occupation  concerning  which  the  slanderous  \vord.s  were 
spoken  at  the  time  they  were  spoken.*  A  person,  how- 
ever, who  is  shown  to  have  pursued  a  certain  calling  at  a 
certain  time  is  presumed  to  continue  to  do  so  until  tho 
contrary  is  proved.''     In   an  English   case  the   plaintiff 


P. 


Litestotiic  iil.im- 
r  a  IHiii-iii  inuul; 
Mutatuiu  liuii"! 
itled  to  recover. 


I  Gibs  V.   Price,   Style,  231;    CoUia 
r,  Malin,   Cro.  Car.  282;   Bellamy  v. 
Burch,  10  Mnes.  &  W.  r)90;  Forward  v. 
Adams,  7  AVcml.  204;  Edwards  r.  How- 
ell, 10  Ircd.  211;  Allen  v.  Hillinan,  12 
Pick.  101.     There  must,  therefore,  be 
an  allegation  that  tho  plaintiff  was,  at 
the  time  of  the  slander,  exercising  such 
calling:  Dickon  v.  yhepherd,  22  Md, 
3011;   or  something   from  which  this 
presumption    will    arise :     Harris    v. 
Burley,  8  N.  H.  210,  tho   court  say- 
ing: "In  this  case  the  words  laid  in 
the  dcLilaration  are  not  actionable  in 
tlioiiiselves,  unless  the   plaintiff  was 
a  trader  at  the  time  of  speaking  the 
words.     In  order  to  maintain  the  ac- 
tion, then,  it  was  necessary  to  prove 
that  the  plaintiff  was  a  trader.     And 
the  question  is,  whether  it  was  suffi- 
cient to  prove  that  trading  had  been 
the  l)usiue;is  ol  tho  plaintiff  previously, 
although  ho  was  not  actually  in  trad« 
at  tho  time.    In  the  case  of  Waldeu  r. 
Mitcliell,  2  Vent.  205,  tho  chief  justice 
saiil  that  where  a  man  had  been  in  an 
office  of  trust,  to  say  that  he  had  be- 
haved himself   corruptly  in  it,  as  it 
imported  great  scandal,    so  it  might 
prsveiit  his  coming  into  that  or  the 
like  office!  again,    and  therefore  was 
aciionaljle.     But  this  is  denied  to  be 
the  law  by  Lord  Chief  Justice  Do  Grey, 
in  Onslow  v.  Horn,  3  Wils.  188,  who 
says  that  he  knows  of  no  case,  whoi-e 
ever  au  action  for  words  was  grounded 
upon  eventual   <lamages,  which  may 
possibly  happen  to  a  man  in  a  future 

situation And  from  the  very 

nature  of  the  case,  what  possible  dam- 
ago  coulil  the  words  laid  in  this  -.ction 
do  tho  plaintiff  as  a  trader,  when,  at 
the  time  they  were  spoken,  he  was  not 
ia  trade?  Tho  reason  why  words  im- 
puting fraud  in  his  dealings  to  a  trader 
aroactionnhlc  in  themselves  is  because, 
Irom  the  nature  of  the  case,  the  impu- 
lU 


tation  must  have  a  tendency  to  affect 
his  business  as  a  trader.  But  here  tho 
plaintiff  had  no  business  as  a  trader  to 
be  affected. " 

^  Bellamy  v.  Burch,  1 0  Mces.  &  W. 
590;  Smayles  v.  Smith,  Rrowul.  1; 
CoUis  t>.  Malin,  Cro.  Car.  282.  "The 
secom".  error  on  which  they  insistedl 
was,  that  the  declaration  is  not  good,, 
because  it  is  not  laid  precisely  that,  at. 
the  time  of  speaking  tho  words,  the 
plaintiff  was  a  linen-draper,  but  only 
for  tho  space  of  five  years  past.  To> 
which  Yelverton  answered,  that  there 
is  a  difference  between  slanders  of  one 
in  respect  of  an  office  and  in  respect 
of  a  trade  or  profession.  For  if  a  man 
says  of  a  justice  of  the  peace  that  he  is 
a  briber,  etc.,  he  must  show,  in  an  ac- 
tion for  these  words,  expressly  in  his 
declaration  that  he  was  a  justice  of 
the  peace  at  the  time  of  the  words 
spoke,  because  they  sound  in  slander 
of  his  person  in  respect  of  his  office 
only,  which  office  continues  during  the 
king's  pleasure  only,  being  by  commis- 
sion. But  where  a  man  is  slandered 
in  his  profession  or  trade,  there  it  need 
not  be  precisely  alleged  that,  at  the 
time  of  the  words  spoken,  ho  was  a. 
lawyer,  jjhysician,  merchant,  or  linen- 
draper;  but  it  fe  sullicient  to  show 
that  he  is  of  such  a  trade,  and  has  exer- 
cised it  for  several  years  past,  without 
saying  ultimo  or  jam  claps;  for  a  man 
shall  not  be  intended  to  alter  his  trade 
or  profession,  but,  by  presumption,  he 
continues, it  during  his  life.  Qiiod/uit 
etinm  conceasum  per  curiam.  Quod  nota 
and  the  judgment  was  atlirmed  ":  Tut- 
hil  V.  ^lilton,  Yel.  lo9;  .Jordan  v.  Lys- 
ter,  Cro.  Eliz.  273.  In  Dotter  v.  Ford, 
Cro.  Eliz.  794,  the  question  was 
whether,  by  alleging  that  he  used  the 
trade  of  a  merchant  wr  muUm  annos 
j(tm  retroactos.  it  could  be  presumed 
t'  at  the  plaintiff  was  a  merchant'  at 


§1252 


SLANDER  AND   LIBEL. 


2242 


brought  an  action  for  false  charges  made  against  him  in 
his  occupation  of  an  attorney.  A  statute  required  that 
a  certificate  should  be  annually  taken  out  by  every  attor- 
ney,  without  wliich  they  were  unable  to  recover  fees,  and 
rendered  themselves  liable  to  a  penalty  if  they  attempted 
to  practice.  The  plaintiff  had  not  taken  out  his  annual 
certificate.  The  court  held  that  this  did  not  affect  his 
right  to  sue.^  If  the  plaintiif  avers  that  ho  carries  on  two 
trades,  it  will  be  sufficient  to  prove  that  he  carries  on  one, 
if  the  \\'ords  can  affect  him  in  tliat  one,'' 

Illustrations.  —  A  was  twice  constable,  once  in  1843,  and 
again  in  1846,  and  during  the  latter  period  a  person  said  of 
him  that,  while  constable  in  1843,  ho  had  made  a  false  roturn. 
ITeUl,  that  he  could  not  recover:  Edioards  v.  Howell,  10  [rod.  211. 
A.  had  been  treasurer  of  a  Masonic  lodge.     H.  said  of  him  that 
he  had  robbed  the  lodge;  but  at  tiie  time  of  the  shuulur  the 
lodge  had   ceased  to  exist.     Held,  that   the  words  wero  not 
actionable;  Allen  v.  Hillman,  12  Pick.  100.     W.  and  J.  were 
partners  in  a  mercantile  business.     In  August,  18G7,  thoy  sold 
•out  to  O.,  intending  thereafter  to  go  into  business  a^ain;  hut 
did  not  do  so.     In  January,  1868,  O.  said  of  them:  "  They  have 
sold  out;  they  are  not  worth  fifty  cents  on  the  dollar."     Held. 
not  actionable:   Windsor  v.  Oliver,  41  Ga.  538.     II.  was  a  co- 
partner in  trade  of  C.     After  the  partnership  had  couie  to  an 
end,  and  H.  had  gone  out  of  business,  B.  said  of  him:  "  Me  has 
got  money  out  of  C."     Held,  not  actionable:  Harris  v.  Burky, 
8  N.  II.  216.     B.  spoke  of  C.  certain  words  imputing  that  on  a 
former  occasion,  while  the  lessee  of  certain  tolls,  he  had  been 
a  defaulter.     At  the  time  of  the  speaking,  he  was  not  a  lessee 
of  tolls,  but  was  about  to  again   become  so.     Held,  that  the 
action  would  not  lie:  Bellamy  v.  Burch,  16  Mees.  &  W.  590. 
A  had  been  a  linen  merchant,  but  at  the  time  of  the  slander 
was  a  clergyman.     E  said  of  him  that  he  was  guilty  of  stealing 
and  fraud  as  a  linen-draper.     Held,  not  a  slander  of  A  in  iiis 
office  of  clergyman:  Hopwood  v.  Thorn,  8  Com.  B.  293. 

§  1252.    Words     Actionable    where  the   Calling   or 
Office  is  Slandered.  —  It  is  actionable  to  impute  ignorance 


the  time  the  words  were  spoken. 
"And  the  court  seemed  to  doubt 
thereof,  because  it  is  not  precisely 
alleged;  for  it  may  be  he  used  that 
trade  for  a  long  time,  and  left  it  after- 


wards. Wherefore  they  would  advise 
thereof." 

'  Jones  V,  Stevens,  1 1  Prioe.  233. 

*  Figgins  V.  Gogswell,  3  Maulo  k  ^. 
369;  Hall  v.  Smith,  1  Maule  &  S.  'JSl. 


2243 


SLA17DER. 


§1253 


where  learning  and  skill  are  reqnisite,  or  dishonesty  where 
integrity  is  indispensable,  or  immorality  where  morality 
is  absolutely  required,  or  the  absence  of  any  other  quali- 
fications which  are  necessary  to  the  prosecution  of  a 
particular  profession  or  calling  or  the  holding  of  a  par- 
ticular office. 

§  1253.  In  General.  —  Thus  it  is  actionable  to  impute 
drunkenness  to  a  school-master;*  or  to  say  of  an  architect 
engaged  to  restore  a  church  that  he  has  no  experience 
in  church  work;''  or  that  "  the  poor  fellow  is  crazy,"  and 
"  his  appointment  as  architect  of  a  public  building  can 
bo  regarded  in  no  other  light  than  as  a  public  calamity";' 
or  to  say  of  a  land  surveyor:  "  Thou  art  a  cozener  and 
a  cheating  knave,  and  that  I  can  provo";*  or  to  say  of  a 
clerk  or  servant  that  he  had  "  cozened  his  master  ";  ^ 
or  to  say  of  a  servant  girl  that  she  had  had  a  miscarriage, 
and  had  lost  her  place  in  consequence;"  or  to  say  to  an 
innkeeper:  "  Thy  house  is  infected  with  the  pox,  and  thy 
wife  was  laid  of  the  pox";  for  even  if  small-pox  only 
was  meant,  still  "  it  was  a  discredit  to  the  plaintiff,  and 
guests  would  not  resort"  to  his  house ;^  or,  "He  kept 
no  accommodations,  and  a  person  could  not  get  a  decent 
bed  or  meal  there  if  he  tried";*  or  to  say  of  a  ship- 
master that  "he  sold  the  consignment  of  the  ship  R.  S. 
[of  which  he  was  master],  and  pocketed  the  money."  " 

Illustrations.  —  A  was  a  school-master,  and  B  said  of  him: 
"Pat  not  your  son  to  him;  for  he  will  come  away  as  very  a  dunce 
as  lie  went."  Held,  actionable:  Watson  v.  Vanderlash,  Het.  71. 
F.  was  R.'s  game-keeper.  N.  said  of  him:  "It  is  no  wonder 
that  we  did  not  find  any  foxes  in  R.'s  wood,  because  F.  trapped 
them.    Held,  actionable:  Foulger  v.  Newcomh,  L.  R.  2  Ex.  327. 

'  Bi-andrick  v.  Johnson,  1  Vict.  L.  R.  *  Seaman  v.   Bigg,   Cro.  Car.   480; 

C.  L.  :m.  Reignakl's  Case,  Cro.  Car.  56.3. 

''  ]5otterill  v.  Whytehead,  41  L.  T.,  "  Connors w.  Justice,  13  Tr.  C.  L.  Rep. 

N.  S.,  SS8.  451. 

^  Clifford  V.  Cochrane,    10   111.  App.  '  Levet'a  Case,  Cro.  Elk.  289. 

570.  *  Trimmer  v.  Hiscock,  27  Hun,  364. 

*  London  v.  Eastgate,  2  Rolle,  72.  *Orr  v.  Skolield,  56  Me.  483. 


8:1254 


SLANDER  AND   LIBEL. 


2244 


W.  was  a  school-mistress,  and  R.  said  of  her:  "  She  is  a  nasty, 
dirty  slut."  Hchl,  actionable:  Wilson  v.  Runyon,  Wright, 
651.'  A  was  captain  of  a  vessel.  B.  said  of  him  that  he  was 
drunk  while  in  command  of  it  at  sea.  Held,  actionable:  Jnviib 
V.  Ih-andwood,  2  Hurl.  &  C.  961.  S.  was  the  chief  engineer  of 
a  fire  department,  and  H.  charged  him  with  being  drunk  at  a 
fire.    Held,  actionable:  Gottbehuet  v.  Ilubackek,  36  Wis.  515. 

§  1254.  Attorneys.  —  It  is  actionable  to  charge  an  at- 
torney  with  dishonesty  in  bis  profession;^  or  with  being 
ignorant,  and  not  having  the  qualifications  of  a  lawyer;' 
to  say  of  an  attorney  that  he  deserved  to  be  struck  off 
the  roll;^  or  that  he  cannot  read  a  declaration;"  or  "He 
has  no  more  law  than  Master  Cheyny's  bull" ;  or  "  He  has 
no  more  law  than  a  goose  ";"  or  "  He  is  only  an  attorney's 
clerk,  and  a  rogue;  he  is  no  attorney";  or  any  M'ords  im- 
puting  that  he  is  not  a  fully  qualified  practitioner;^  or 
"  He  is  an  ambidexter,"  i.  e.,  one  who  being  retained  by 
one  party  in  a  cause,  and  having  learned  all  his  secrets, 
goes  over  to  the  other  side  and  acts  for  the  adversary;* 
or  that  he  will  betray  his  clients*  secrets  and  overthrow 
their  cause;*  or  that  he  is  guilty  of  barratry,  champerty, 
or  maintenance; '"  or  "He  stirreth  up  suits,  and  once  prom- 
ised  me  that  if  he  did  not  recover  in  a  cause  for  me  he  would 
take  no  charges  of  me,"  because  stirring  up  suits  is  bar- 
ratry, and  undertaking  a  suit,  no  purchase  no  pay,  is 
maintenance";"  or  that  he  is  a  drunkard,  and  makes  ex- 


'  This  ruling  is  sustainable  at  com- 
mon law,  only  on  the  ground  that  it  is 
particularly  required  of  a  wonwan  en- 
gaged in  instructing  youth  that  she 
shall  not  bo  what  there  she  was 
charged  with. 

^  Sanderson  r.  Caldwell,  45  N.  Y. 
398;  G  Am.  Rep.  105. 

^  "To  say  of  an  attorney  ho  is  no  law- 
yer i-i  a  great  reflection  m)on  him,  and 
means  that  he  does  not  understand  his 
business;  besides,  an  attorney  must 
have  a  competent  knowledge  of  tlie 
law,  or  lie  cannot  draw  a  coianion  writ 
or  declaration":  Day  v.  BuUer,  3 
Wjls.  5!). 

*I'liillip.'i    V.    Jansen,   2  Esp.   624; 


Warton  v.  Gearir  i^,  1  Vict.  L.  R.  C. 
L.  122. 

*  Powell  V.  Jones,  1  Lev.  297. 

*  Baker  ?'.  Morfue,  vel  Morphew, 
Sid.  327;  2  Keb.  202. 

'  Hardwick  v.  Chandler,  Strange, 
1138. 

"  Annison  v.  Blofield,  Carter,  214;  1 
RoUe  Abr.  55. 

"  Martyn  v.  Burlings,  Cro.  Eliz. 
589. 

'"  Boxe  V.  Barnaby,  1  Rolle  Al)r.  'w; 
Hob.  117;  Proud  »>.  Hawes,  Cro.  Eliz. 
171;  Hob.  140;  Taylor  v.  Sturkey, 
Cro.  Car.  192. 

"  Smith  V.  Andrew.^,  1  RoUc  Abr.  54; 
Hob.  117. 


2245 


SLANDER. 


§  1254 


tortionate  charges  for  his  services;  *  or  "  Thou  art  no  law- 
yer; thou  canst  not  make  a  lease;  thou  hast  that  degree 
without  desert;  thoy  are  fools  who  come  to  thee  for  law  ";^ 
or  "lie  hath  as  much  law  as  a  jackanapes";'  or  "lie  is  a 
very  base  rogue  and  a  cheating  knave,  and  doth  maintain 
himself,  his  wife  and  children,  by  his  cheating";  *  or  that 
"  ho  hath  the  falling-sickness,"  for  that  disables  him  in 
his  profession; "  or  "  Ho  has  deceived  his  client,  and  re- 
vouled  the  secrets  of  his  cause";"  or  "What!  does  he  pre- 
tend to  be  a  lawyer?  Ho  is  no  more  a  lawyer  than  tlio 
Devil";''  or  "He  will  give  vexatious  and  ill  counsel,  and 
stir  up  a  suit  and  milk  her  purse,  and  fill  his  own  largo 
pockets."  * 

Illustrations,  —  C.  charged  an  attorney  who  colloetod 
cliiims  against  the  government  that  he  "did  a  good  thing  in 
his  soher  moments  in  the  way  of  collecting  soldiers'  claims 
against  the  government  for  a  fearful  percentage."  Ildd,  action- 
able: Sanderson  v.  Caldwell,  45  N.  Y.  398.*  P.  was  ii  lawyer. 
J.  said  of  him:  "He  is  a  dunce,  and  will  get  little  hy  the  law." 
Ildd,  actionable:  Peard  v.  Jones,  Cro.  Car.  382.'"  R.  was  an 
attorney.  C.  said  of  him:  "  He  is  a  cheat."  //rW,  actionable: 
Rush  v.  Cavenaugh,  2  Pa.  St.  187.  C.  was  an  attorney.  D.  said 
of  him:  "  C.  is  a  man  not  to  be  trusted  in  his  business  of  an 
attorney.  He  will  take  fees  on  both  sides."  Held,  actionable: 
Chipman  v.  Cook,  2  Tyler,  456.  G.  was  an  attorney,  and  S.  said 
of  him:  "He  discloses  his  clients'  secrets."  Held,  actionable: 
Garr  v.  Selden,  6  Barb.  416. 


Rollo  Abr.  54; 


■  Sanderson  v.  Caldwell,  45  N.  Y. 
398;  (i  Am.  Rep.  105. 

■  BaiiUes  v.  Allen,  RoUe  Abr.  54. 

'  Palmer  v.  Boyer,  Owen,  17;  Cro. 
Kliz.  342;  cited  with  approval  in 
Broke'.s  Case,  Moore,  409.  In  Cawdrey 
r.  Totloy,  Godl).  441,  it  is  said  that 
had  the  words  been,  "  He  has  no  more 
wit  tluiii  a  jackanapes,"  no  action 
would  have  lain;  wit  not  being  essen- 
ti.il  to  success  at  the  bar,  according  to 
F.  Pollock,  2  Ad.  &  E.  4. 

*  Anon.,  Cro.  Car.  51(5,  See  Jenkins 
t).  Smith,  Cro.  Jao.  58G. 

=;  Taylor  v.  Perr,  1  Rolle  Abr.  44. 

''  Siiag  V,  Gray,  1  Rolle  Abr.  57;  Co. 
Entr.  22. 


'  Day  V.  Buller,  3  Wils.  59. 

•King  V.  Lake,  2  Vent.  28;  Hardr. 
470. 

•  The  case  was  for  a  printed  libel, 
but  the  court  said  that  the  result  would 
not  have  been  different  had  the  slan- 
der been  verbal. 

'"  In  tliis  case  it  was  argued  that 
"dunce"  was  commonly  spoken  of 
one  who  was  dull  and  heavy  of  wit; 
that  one  so  described  might  not  bo  as 
quick  and  ready  as  others,  yet  might 
have  a  more  deliberate  and  solid  judg- 
ment; but  all  the  court  thouglit  that 
a  "dunce  "  was  a  person  of  dull  ci\\)Q.- 
city  and  apprehension,  not  lit  to  be  a 
lawyer. 


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§  1255 


SLANDER  AND   LIBEL. 


2246 


§  1255.    Clergymen.  —  Though  a  charge  of  immorality 
not  amounting  to  an  indictable  crime  is  not  actionable 
per  se,  there  is  an  exception  in  the  case  of  a  clergyman  or 
priest.    Ministers  of  the  gospel  being  teachers  and  exem- 
plars  of  moral  and  Christian  duty,  a  pure  and  unspotted 
moral  character  is  absolutely  necessary  to  their  useful- 
ness.    A  merchant  or  a  doctor  or  a  lawyer  might,  by  a  rtpu. 
tation  for  drunkenness,  lose  a  portion  of  his  trade  or  his 
practice.    This,  however,  would  generally  depend  upon  the 
extent  to  which  his  excesses  interfered  with  the  discharL'e 
of  his  duties;  and  a  merchant  who  was  always  to  be  found 
in     is  rstore  during  business  hours,  or  a  lawyer  whose 
indulge:  cts  were  never  known  to  prevent  his  properly 
mani^gmg  his  cases,  would   probably  suffer  little  in  liis 
calling  Dy  being  charged  with  employing  his  leisure  in 
dissipation.     But  with  a  minister  of  the  gospel  it  is  dif. 
ferent.     His  whole  life,  and  not  the  hours  he  is  engaged 
in  the  pulpit,  is  watched  and  closely  scrutinized.    As  said 
in  Chaddock  v.  Briggs,'  "  he  is  separated  from  the  world 
ly  his  public  ordination,  and  carries  with  him  constantly, 
whether  in  or  out  of  the  pulpit,  superior  obligations  to 
exhibit  in  his  whole  deportment  the  purity  of  that  re- 
ligion which  he  professes  to  teach.     He  is  as  much  in 
office  when  retired  to  the  bosom  of  his  family  as  wlien 
employed  in  public  duties,  and  his  example,  in  the  prac- 
tice of  all  the  moral  virtues,  and  particularly  of  temperance, 
is  not  the  least  of  the  duties  incurred  by  his  profession."" 
Thus  it  has  been  held  actionable  per  se  to  charge  a  clcrsiy- 
maii  with  drunkenness;'  or  with  incest,  even  where  that 
crime  is  not  indictable;  *  or  to  say  that  "  he  is  a  drunkard. 


>  l.'iMass.  248;  7  Am.  Dec.  137. 

'  Highmore  v.  Harrington,  .3  Com. 
B.,  N.  S.,  142;  Gallmuy  i-.  Marshall, 
9  Ex.  294. 

=•  Cliadilock  V.  Briggs,  13  Mass.  248; 
7  Ain.  Dec.  137;  McMillan  v.  Bush,  1 
Biuii.  ITS;  2  Am.  Dec.  42G;  Hayaor 
V.  Cowaun,  27  Ohio  St.  292;  22  Am. 
licp.  303. 


♦  Starr  v.  Gardner,  6  U.  C.  Q.  B. 
512,  the  court  saying:  "In  this  coiiii- 
try,  or  in  any  Cliristian  coimtiy,  no 
congregation  would  abide  luulbi-  lii^i 
ministry  for  a  day  after  he  had  lioti!, 
in  fact,  deterged  in  a  crime  of  tliiit  jie- 
culiar  nature;  he  could  not  show  liis 
face  in  society,  but  would  be  as  rer- 
tainly  and  effectually  excluded,  more 


2247 


SLANDEB. 


§125G 


a  whoreraaster,  a  common  swearer,  a  common  liar,  and 
hath  preached  false  doctrine,  and  deserves  to  be  de- 
graded";' or  that  he  has  indecently  assaulted  a  woman;'' 
or  that  he  drugged  the  speaker,  and  so  induced  him  to 
sign  a  note;^  or  that  "he  preaches  nothing  but  lies  and 
malice  in  the  pulpit,"  for  the  words  are  clearly  spoken 
of  him  in  the  way  of  his  profession;*  or  that  he  "  used 
and  embezzled  money  for  his  own  wrongful  uses,  and  I 
will  prove  it;  and  he  is  unfit  to  be  the  minister  in  our 
pulpit."* 

§  1256.  Mechanics  and  Workmen.  —  So  an  imputation 
of  insolvency  is  actionable  in  the  case  of  a  mechanic. 
In  an  English  case,*  it  was  argued  that  such  words  were 
not  actionable,  because  they  did  not  tend  to  his  dispar- 
agement; for  he  might  be  broken,  and  yet  be  as  good  a 
carpenter  as  before;  that  a  carpenter  builds  upon  the 
credit  of  other  men;  and  so  long  as  the  words  did  not 
touch  him  in  his  skill  and  knowledge  of  his  profession, 
they  could  not  injure  him.  But  the  court  said:  "The 
credit  which  the  defendant  hath  in  the  world  may  be  a 
means  to  support  his  skill;  for  he  may  not  have  an 
opportunity  to  show  his  workmanship  without  those 
materials  for  which  he  is  intrusted."  So  it  is  actionablo 
to  say  of  a  mechanic  that  he  is  no  workman,  or  otherwise 
to  charge  a  lack  of  the  skill  requisite  for  the  carrying  on 
of  his  trade;^  to  say  of  a  watch-maker,  "  He  is  a  bungler, 
and  knows  not  how  to  make  a  good  watch."  ^ 

Illustrations.  —  R.  said  of  F.,  who  was  a  mason:  "  lie  is 
no  mechanic;  he  cannot  make  a  good  wall,  or  do  a  good  job  of 


especially  from  an  office  which  re- 
quirc'il  him  to  inculcate  religion  and 
morality,  as  if  he  had  committed  an 
unnatural  crime;  and  much  more  cer- 
tainly than  if  ho  had  committed  many 
otliLT  otfuusca  which  the  law  makes 
felony."' 

'  J)oil  r.  Rohinson,  Aleyn,  63;  Dr. 
Silttlu.ipes Case,  VV.  Jones,  3G6:  Rolle 
Abr.  36. 


"  Evans  t\  Gwyn,  5  Q.  B.  844. 

*  Pemberton  v.  Coll-i,  10  Q.  B.  461. 
*Cranden  v.    Walileu,    ;{    Lev.    17; 

Pocoek  V.  Nash,  Comb.  253;  Musgrave 
V.  Bovey,  Strob.  94(i. 

^  Franklin  v.  Browne,  (i7  Oa.  272. 

"Chapman??.  Lanipliiro,  3  Mod.  155. 

'  Fitzgerald  v.  RedHeld,  1 1  Barb. 
484. 

*  Redman  v.  Pyue,  1  Mod.  19. 


§1257 


SLANDER   AND   LIBEL. 


2248 


plastoring;  h''  is  no  workman;  he  is  a  botch."  Held,  action- 
able: Fitzgerald  v.  Redjield,  11  Barb.  484.  C.  was  a  carpenter, 
and  L.  said  of  him:  ''He  is  broken,  and  run  away,  and  will 
never  return  again."  Held,  actionable:  Chapman  v.  Lamphire, 
3  Mod.  155. 


§  1257.  Merchants  and  Traders.  —  Thus  in  all  occupa- 
tions where  credit  is  essential  —  as  that  of  a  merchant  or 
trader — an  imputation  of  insolvency  is  actionable  per  sc' 
Thus  it  is  actionable  per  se  to  say  of  any  trader  that  "  he 
is  not  able  to  pay  his  debts";''  or  to  say  to  a  tailor,  "I 
heard  you  were  runaway,"  scilicet,  from  your  creditors;'  or 
to  say  of  a  brewer  that  he  had  been  arrested  for  debt,  and 
this,  although  no  express  reference  to  his  trade  was  made 
at  time  of  publication,  for  such  words  must  necessarily 
affect  his  credit  therein;*  or  to  assert  that  the  plaintiff 
had  once  been  bankrupt  in  another  place,  when  carrying 
on  another  trade,  for  that  may  still  affect  him  here  in 
his  present  trade.*  So  a  charge  of  dishonesty  in  a  mer- 
chant or  trader  in  his  business  is  actionable  per  se;  as,  for 
exami)le,  that  a  butcher  or  other  dealer  uses  false  weights;" 
that  a  dealer  in  grain  or  any  other  article  delivers  short 
quantities  or  inferior  goods,'  or  adulterates  his  goods;* 
that  a  merchant  keeps  false  books;"  or  to  say  of  a  mer- 
chant, "  You  have  received  more  tobacco  in  your  house  than 


'  TowTisIiend  on  Slander  and  Libel, 
sec.  ISM;  Brown  v.  Smith,  13  Com.  B. 
690;  GostliuK  v.  Brooks,  2  Fost.  &  F. 
70;  Robinson  v.  Marchaut,  7Q.  B.  918; 
Harrisoti  p.  Bevington,  8  Car.  &  P. 
708;  Wbittington  V.  Glatlwin,  5  Barn. 
&  C.  180;  Lewis  v.  Hawley,  2  Day, 
495;  2  Am.  Dec.  121;  even  though  he 
is  not  subject  to  the  bankruptcy  laws: 
^Vhittiugtou  V.  Gladwin,  5  Barn.  &  C. 
ISO. 

^  Orpwood  V.  Barkes,  4  Bing.  261; 
Morris  r.  Langdalo,  2  Bos.  &  P.  284; 
in  Pliillips  r.  Huefer,  44  Am.  Doc. 
Ill,  1  P;i.  St.  62,  the  plaintiff  was  a 
farmer,  and  the  words  were  held  ac- 
tionable ;)('/•  .se. 

^  Davis  r.  Lewis,  7  Term  Rep.  17. 
And  see  Dol)son  v.  Thornistonc,  3  Mod. 
112;    Chapman  v.   Lamphire,  3  Mod. 


155;  Arne  v.  Johnson,  10  Mod.  Ill 
Harrison  v.  Thornborough,  10  Mod, 
196;  Gilb.  114. 

*  Jones  V.  Littler,  7  Mees.  &  W 
423;  10  L.  J.  Ex.  171. 

*  Leycroft  v.  Dunker,  Cro.  Car.  317 
Hall  V.  Smith,  1  Maulo  &  S.  287;  Fig 
gins  i\  Cogswell,  3  Maule  &  S.  3l>9. 

«  Griffiths  V.  Lewis,  15  L.  J.  Q.  B 
249;  Priori;.  Wilson,  1  Com.  B.,  N.  S., 
95. 

'  Thomas  v.  Jackson,  3  Bing.  104. 

*  .lesson  V.  Hayes,  RoUc  Abr.  C.3. 
Words  charging  a  mere  adulteration 
are  not  actionable;  addition  of  foreim 
substances   in   refining  sugar  maybe 

S roper:  Havemoyer  v.  Fuller,  10  Abb. 
I.  C.  9. 

*  Backus  V,  Richardson,  5  Juluis. 
477. 


2248 


2249 


SLANDER. 


§1257 


Held,  action- 
a  carpenter, 
ay,  and  will 
V.  Lamphire, 

1  all  occupa- 
merchant  or 
lable  per  se} 
er  that  "  he 
a  tailor,  "  I 
ireditors;^  or 
for  debt,  and 
,de  was  made 
t  necessarily 
the  plaintiff 
hen  carrying 
him  here  in 
esty  in  a  mer- 
per  se;  as,  for 
alse  weights;" 
.elivers  short 
Is  his  goods;* 
say  of  a  mer- 
ur  house  than 

[on,  10  Mod.  Ill; 
)orough,   10  Mod. 

7   Mees.  &  W. 

Ler,  Cro.  Ciir.  317; 

ule  &  S.  287;  Fig- 
ilaule  &  S.  -m. 
lis,  15  L.  J.  Q.  B. 
■  1  Com.  B.,  N.  S., 

jn,  3  Bing.  104. 

Rollo  Alir.  63. 
Inere  ailultoration 
IdJition  of  foreign 
fug  sugar  mayne 
\v.  Fuller,  10  Abb. 

iirdsoa,   5  Jolins. 


you  have  accounted  for;*  or  to  say  of  a  contractor,  "He 
used  the  old  materials,"  when  his  contract  was  for  new;'' 
or  to  say  of  a  butcher  that  he  slaughters  and  sells  diseased 
and  unwholesome  meats,^  or  that  ho  changed  the  lamb 
bought  of  him  for  a  coarse  piece  of  mutton,*  or  that  he 
dressed  and  sold  an  unborn  calf  from  a  dead  cow;"'  or  to 
call  a  business  man  a  defrauder,  and  to  tell  hiiu  that  all  he 
has  he  accumulated  by  defrauding."  It  is  proper  to  refuse 
to  charge  that  the  words  that  plaintiff  is  sulfering  from 
overwork,  and  his  mental  condition  is  not  good,  and  that 
there  has  been  trouble  in  the  affairs  of  the  bank  (of  which 
plaintiff  is  teller),  occasioned  by  plaintiff's  mental  de- 
rangcniont,  and  that  his  statements  when  he  was  probably 
not  responsible  for  them  have  caused  bad  rumors,  are 
libelous  2^cr  se;  the  court  having  charged  that,  if  their 
tendency  was  to  injure  plaintiff  in  his  profession,  they 
are  libelous/ 

But  it  is  not  actionable  per  se  to  say  of  a  merchant  that 
he  has  executed  a  chattel  mortgage.^  Slandering  a  part- 
ner by  declaring  him  to  bo  insolvent  is  no  slander  of  the 
firm  of  which  he  is  a  me-nber.* 

Illustr.\tions.  —  R.  was  a  lace-man.  H.  said  of  him:  "  You 
are  a  rascal;  you  are  a  pitiful,  sorry  rascal;  you  are  next  door 


'  Hoylo  V.  Young,  1  Wash.  (Va.) 
150;  1  Am.  Dec.  44(j. 

-Bahouneau  v.  FarrcU,  15  Com.tB. 
3G0;  -24 L.  J.  C.  P.  9;  1  Jur.,  N.S.,  114; 
3C.  L.  R.  243;  Sir  R.  Greenfield's  Case, 
March,  8'J;  1  Yin.  Abr.  465;  Smith  v. 
Mathttts,  1  Moody  &  R.  151. 

^  Young  r.  Kuhn,  71  Tex.  645. 

*  Crisp  c.  (iiU,  29  L.  T.,  O.  S.,  82; 
Rico  r.  i'idgeon.  Comb.  161. 

*  Singer  0,  Bender,  64  Wis.  169. 

'  Nouiiingcr  v.  Vogt,  88  Mo.  589. 
'  Monro  V.  Francis,  20  N.  Y.  State 
Rep.  1)41. 

*  Newbold  V.  Bradstreet,  57  Md.  38; 
40  Am.  Rep.  4'J6,  the  court  saying: 
"We  have  l)een  referred  to  no  case, 
ami  have  beon  able  to  find  none,  in 
which  it  lias  been  held  that  to  say  of 
a  merchant  simply  that  he  has  made  a 


chattel  mortgage,  without  anything 
more  as  to  amount,  subject  of  the 
mortgage,  or  the  occasion  of  it,  ia 
libelous  or  slanderous  jirr  tie,  and  that 
damage  therefrom  i.s  necessarily  in- 
ferred. We  think  no  such  legal  infer- 
ence can  in  reason  ]>r  indulged.  Chat- 
tel mortgages  as  well  as  the  pledge  of 
stocks  and  other  securities  may  be 
made  by  merchants  and  others  with- 
out giving  rise  to  ;iny  legal  inference 
or  presumption  of  insolvency,  or  that 
such  an  act  will  nccussarily  tend  to 
impair  or  injure  the  ciodit  and  stand- 
ing of  the  mortgager  or  pledgor.  In- 
deed, we  suppose  it  would  be  alarming 
to  merchants  and  tradesmen  to  learn 
otherwise." 

•  Davis  V.  Rufif,  C'heves,  17;  34  Am. 
Dec.  584. 


1258 


SLAHDEB  Airb  LIBEL. 


2250 


to  breaking."  ITeld,  actionable:  Read  v.  Hudson,  Ld.  Raym.  010, 
R.  was  a  husbandman,  and  T.  said  of  him:  "He  owes  more 
money  than  he  is  worth;  he  is  run  away,  and  broke."  Ifdd^ 
actionable:  Dobson  v.  Thorniatone,  3  Mod.  112.  R.  was  a  })aiikor, 
and  M,  said  of  him:  *'  R.  has  had  his  checks  returned  back  un- 
paid." Held,  actionable:  Robinson  v.  Marchant,  7  Q.  15.  !)18. 
B.  was  a  storekeeper,  and  W.  said:  "He  has  nothing  but  rotten 
goods  in  his  shop."  Held,  actionable:  Burnet  v.  Wells,  12  .Moil. 
420.'  Defendant  sold  paints  to  plaintiff  under  a  condition  that 
plaintiff  should  not  add  anything  to  them,  and  that  plaintitf  liad 
violated  his  agreement.  Held,  that  an  action  of  slander  foniuled 
on  defendant's  statement  thai,  plaintiff  had  adulterated  the 
paints  could  not  be  maintained:  Lynch  v.  Febirfer,  39  La.  Ann, 
336.  R.  was  an  auctioneer.  G.  said  of  him:  "You  arc-  a  deceit- 
ful rascal,  a  villain,  and  a  liar.  I  would  not  trust  you  with  an 
auctioneer's  license.  You  robbed  a  man  you  called  your  friend; 
and  not  satisfied  with  ten  pounds,  you  robbed  him  of  tntjnty 
pounds  a  fortnight  ago."  Held,  actionable:  Ramsdale  v.  Grenn- 
acre,  1  Fost.  <fe  F.  61. 

§1258.  Officers. — It  is  action  /le  to  assail  the  char- 
actor  and  integrity  of  a  judge; ^  as  to  say  that  a  judge 
gives  corrupt  sentences.'  So  it  is  actionable  to  assail  the 
character  and  integrity  of  a  justice  of  the  peace;*  to  say 
that  a  justice  of  the   peaco   takes    bribes   or   "  perverts 


*  But  hail  tho  words  been  simply, 
"  Ho  has  rotten  goods  in  his  shop," 
they  would  not  have  been  actionable. 
There  are  prol):il»ly  few  storekeepers 
who  have  not  ainung  their  stock  some 
damaged  or  rotten  goods,  which  they 
either  do  not  otfor  at  all,  or  oflFer  only 
at  a  sacrifice;  but  a  tradesman  whose 
whole  stock  was  alleged  to  be  rotten 
would  certainly  be  avoided  by  the 
public. 

'^  Robbins  v.  Treadway,  2  J.  J. 
Marsh.  540;  19  Am.  Dec.  152;  Hook 
V.  Hackney,  Hi  Surg.  &  R.  385. 

*  Cit'sar  r.   Curseny,  Cro.  Eliz.  303. 

*  Grain  v.  Franklin,  5  Blackf.  42.  In 
England,  it  is  held  that  since  no 
special  learning  or  ability  is  expected 
of  a  justice  of  the  peace,  it  is  not  ac- 
tionable to  call  him  "fool,"  "ass," 
"blockliead,"  or  any  other  words 
merely  iniputin.,'  want  of  natural  clev- 
erness or  igiior..iice  of  law.  But  words 
which  impute  to  him  corruption,  dis- 


honesty, extortion,  or  seditinu  are 
actionable  of  course:  Bill  r.  .V";il,  1 
Lev.  52;  How  v.  Prin,  Holt,  ti.Vj;  j 
Salk.  694;  Aston  r.  Blagrave,  I  Stiun'e, 
617;  8  iMod.  270.  But  in  WiMMmsiu, 
it  has  been  held  actionable  tn  call  a 
justice  of  the  peace  "a  dainiii'il  t'dnl 
of  a  justice":  Spiering  r.  Aiidr.ie,  4.) 
Wis.  330;  :W  Am.  Rep.  744.  ( allmg 
a  magistrate  a  "  damned  Ijlaklg, ' 
and  charging  him  witli  buiui;  in  a 
"combined  company  to  client  stran- 
gers," is  not  actionalile  wliitro  iio 
official  misconduct  or  neglect  ut  nfr 
cial  duty  is  alleged  again.st  liini:  V;in 
Tassel  v.  Capron,  I  Deiiio,  "JoO;  43 
Am.  Dec.  667.  Speaking  ot  a  \u- 
gistrate  as  "squire,  '  in  using  oppro- 
brious  words  concerning  him,  is  imre 
deHcriptiopermno!,  and  does  not  iiiiport 
that  the  words  were  spoken  i.t  1  iiiiin 
respect  of  his  office:  Van  Tassel  r. 
Capron,  1  Denio,  250;  43  Am.  Dec. 
667. 


2250 


2251 


SLANDER. 


§i25y 


,d.  Raym.  010. 
le  owes  more 
jrokc."  Ilrhl, 
was  a  hanker, 
irncd  })ack  un- 
,  7  Q.  U.  '.US. 
ling  but  rotten 

Wells,  12  Mod. 

condition  that 
at  plaintilT  bad 
lander  fDinuled 
idultoratc'd  tlie 
er,  39  La.  Ann. 
ou  aro  a  docoit- 
ist  you  with  an 
led  your  friund; 

him  of  twonty 
mdale  v.  Omn- 


3sail  the  char- 

y  that  a  judge 

»le  to  assail  the 

peace;''  to  say 

or   **  perverts 

n,  or  sedition  are 
rse:  Bill  r.   X'^al,  1 

Prin,  Holt,  li.vj; 'J 
Blagrave,  1  Straiii-e, 

But  in  NVi^'t'tuisiii, 
actioual)lu  to  lalla 
ace  "a  ilatiiiu'il  I'^l 
liering  i'.  Amli'ie,  4.) 
.  Kep.  744.  _  Calling 

.1  with   beinsi   in  a 

|(any  to  cheat  sirau- 

ftionablo    wUcvc;    no  I 

•t  or  ucglcct  of  iifr 

d  against  iiim:  V;m 

I    Deiiio,  'Jo*);  W 

'Sweakini^  of  n  '>«'• 

•e,      ill  using  'nipro- 

lerning  liini,  i^  ""K 

land  does  not 'inport 

pro  spoken,  if  li""" 
'^ce:  Van    Tassel  \: 
250;  43  Aui.  Dec. 


justice  to  serve  his  own  turn  ";'  to  assail  the  character  and 
integrity  of  a  circuit  court  commissioner."  It  is  action- 
a))le  to  charge  any  public  officer  with  taking  bribes;'  or  to 
say  of  a  town  clerk  that  he  hath  not  performed  his  office 
according  to  law;*  or  to  say  of  a  constable,  "lie  is  not 
worthy  the  office  of  constable";'  or  to  say  of  a  post- 
master that  he  broke  open  or  destroyed  mail  matt^^r;"  or  to 
say  to  a  church-warden,  "  Thou  art  a  cheating  knave,  and 
hast  cheated  the  parish  of  forty  pounds  ";'  or  to  say  of  an 
election  inspector  that  "  ho  counted  four  votes  which 
wcrv  cast  for  E.  for  B.  for  sheriff.  ....  It  is  true;  there 
is  no  doubt  about  it.  There  was  a  man  standing  looking 
right  over  plaintiff's  shoulder  and  saw  him  do  it;  it  is 
a  swindle."  ^ 

Illustrations.  —  The  defendant  said  of  a  justice  of  the 
peace,  "Gove  perjured  himself  in  deciding  the  suit  of  Whitcomb 
against  me,  ....  and  I  will  be  damned  if  I  will  believe  liim 
uiKkr  oath,  for  he  has  decided  against  me  contrary  to  all  law 
and  evidence,  and  it  is  the  Cod  damnedest  erroneous  decision  I 
ever  saw  any  justice  give,  and  it  was  damned  outrage,  and  it 
was  done  ("or  spite."  IleM,  actionable:  Gove  v.  lilethen,  21 
Minn.  80;  18  Am.  Rep.  380. 

§  1259  Physicians  or  Surgeons. — To  charge  a  physi- 
cian or  surgeon  with  ignorance,  incapacity,  or  want  of 
professional  qualifications  is  actionable.*  So  it  is  to 
charge  that  he  is  so  bad  a  character  that  no  other  medi- 
cal man  will  meet  him;  because  a  medical  man  must 
frequently  require  the  assistance  and  advice  of  his  pro- 
fessional brethren,-and  to  impute  to  him  that,  on  account 


'  Ca;sar  v.  Cursenv,  Cro.  Bliz.  305; 
Carn  r.  Osgood,  1  Lev.  280;  AUeston 
V.  Moor,  Het.  167;  Masham  v, 
Biidges,  Cro.  Car.  223;  laham  v. 
York,  Cro.  Car.  15;  Beamondv.  Hast- 
ings, Cro.  Jac.  240;  Aston  v.  Blagrave, 
1  StianKC,  617;   8  Mod.  270. 

''  Lansing  v.  Carpenter,  9  Wis.  540; 
76  Am.  Dec.  281. 

'Purdy  V.  Stacey,  Burr.  2698; 
Moor  V.  Foster,  Cro.  Jac.  65. 


♦  Powell  V.  Cowe,  RoUo  Abr.  56; 
Wright  V.  Moorhouse,   Cro.  Eliz.  358. 

*  Taylor  v.  How,  Cro.  Eliz.  861;  1 
Vin.  Abr.  464. 

6  Harris  r.  Terry,  98  N.  C.  131. 

'  Strode  v.  Holme.'?,  Stylos,  338;  1 
RoUe  Abr.  58;  VVoodrutl  v.  Weolley, 
1  Vin.  Abr.  463. 

«  Ellswortii  V.  Hayes,  71  Wis.  427. 

•  CruiksJiank  i\  Clordon,  48  Hun, 
308,  aad  cases  in  following  notes. 


1260 


SLANDER  AND   LIBEL. 


22o2 


of  his  character,  ho  is  not  able  to  obtaia  this  for  his  pa. 
tients,  however  necessary  it  may  be,  is  to  charge  him  with 
lacking  a  very  important  qualification  for  the  dischargf) 
of  his  duties;*  or  that  he  has  caused  the  death  of  aiiv 
patient  through  his  ignorance  or  culpable  negligence;-  or 
that  he  is  a  "quacksalver,"  an  "empiric,"  or  a  "  iiioiin. 
tebank";'  or  that  "he  is  no  doctor;  he  bought  his  diploma 
for  fifty  dollars."* 

Illustrations. —  T.  was  an  apothecary,  and  A.  said  of  him; 
"  It  is  a  world  of  blood  he  has  to  answer  for  in  this  town ;  through 
his  ignornnce  ho  did  kill  a  woman  and  two  children  at  S.; 
he  has  killed  his  patients  with  physic."  Held,  actionable; 
Tutty  V.  Alewin,  11  Mod.  221.  C.  was  a  physician,  and  II, 
said  of  him:  "Thou  art  a  drunken  fool,  and  an  ass;  thou  ^vert 
never  a  scholar,  and  art  not  worthy  to  speak  to  a  scholar,  and 
that  I  will  prove  and  justify."  Held,  actionable:  Cawdnj  \, 
Highley,  Cro.  Car.  212;  sub  nom.  Cawdry  and  Telley^a  Ca&r,  (iodb, 
441.  B.  was  a  midwife.  W.  said  of  her:  "She  is  an  ignorant 
woman,  and  of  small  practice,  and  very  unfortunate  in  her 
way.  There  are  few  that  she  goes  to  but  lie  desperately  ill,  or 
die  under  her  hands."  Held,  actionable:  Wharton  v.  Jlnwl;, 
1  Vent.  21.  S.  was  a  surgeon,  and  D.  said  of  him:  "  I  \von(lcr 
you  had  him  to  attend  you.  Do  you  know  him?  There  have 
been  many  inquests  had  upon  persons  who  have  died  because 
he  attended  them."  Held,  actionable:  Southee  v.  Denny,  1  Kx, 
196.  J.  was  a  physician,  and  R.  said  of  him:  "He  killed  the 
child  by  giving  it  too  much  calomel."  Held,  actionable:  John- 
son V.  Robertson,  8  Port.  486. 

§  1260.  Aliter  where  only  General  Reputation  is  At- 
tacked. —  But  the  language,  in  order  to  be  actionable,  must 
affect  the  plaintiff  in  his  particular  office  or  occupation; 
that  his  general  reputation  is  afi'ected  is  insutncient/   To 

the  •words  refer  to  his  trade.  To  inis 
pute  d'.atinctly  that  he  cheats  or  cdzcn- 
in  his  trade  i3  actionable:  JoIimh  r.  (;it. 
tinga,  Cro  Eliz.  239;  Cotos  r.  Kctle, 
Cro.  Jac.  204;  Terry  v.  Hooi)t.r,  1  Lev. 
115;  Savage  u.  Robury,  5  Moil.  oDS;  2 
Salk.  694;  Surman  v.  Shellctii,  5  Burr, 
1688;  Bromefield  v.  Siioke,  1l'  Mnl 
307;  Savik  v.  Jardine,  2  H.  Bluk.  j;tl; 
Lancaster  v.  French,  2  Stnuije, ',')'; 
Davis  V.  Miller,  2  Strange,  11(5'.';  Fel- 
lowes  V.  Hunter,  20  U.  C.  Q.  b.  382. 


^  Southee  v.  Denny,  1  Ex.  196. 

2  Tutty  V.  Alewin,  11  Mod.  221; 
Sou-Jiee  V.  Denny,  1  Ex.  196;  Edsall 
V.  Russell,  4  Man.  &  G.  1090. 

»  Allen  V.  Eaton,  1  Rolle  Abr.  54; 
Goddard  v.  Haselfoot,  1  Vin.  Abr. 
12. 

♦  Bergold  V.  Puchta,  2  Thomp.  &  C. 
632. 

*  To  call  a  tradesman  *'  a  rogue,"  or 
"a  cheat,"  or  "a  cozener"  is  not  ac- 
tionable, unless  it  can  be  shown  that 


2253 


SLANDER. 


§  1260 


L.  said  of  him; 
itown;  tlirouf^h 
hildren   at  S.; 
;itZ,  actioiiuble; 
sician,  auil  II, 
ass;  thou  wcrt 
)  a  scholar,  and 
ble:  Cav-dnj  v. 
ey^s  Casc,tlodb, 
)  is  an  ignorant 
ortunate  in  lier 
jsperately  ill,  or 
karton  v.  />'"'io/.-, 
tiim:  "  I  ^voI1dor 
Then;  have 
ve  died  V)ecau^e 
V.  Denny,  1  I'^x. 
"  He  kilh''l  the 
tionablc:  John- 


nitation  is  At- 
;tionablo.  luust 
or  occiip:it^io"i 
sufficient.'  To 

,  his  trade.  To  iins 
Lt  he  cheats  (ir  cozen- 

pnable:Joliu.-";;<';t- 
39;  Cotes  r.  Kctle, 
rv  V.  Hooper,  1  Lev. 
bury,  5  Mod  :WS;  2 
.  V.  Shelleto,  ?  B;irr. 
V.  Suoke,  V.iM«. 
ine,2H.Bla.k.o.l; 

tch,  2  Strau,-:'-'.  j;''; 
Strange,  l\^\^ 


say  of  an  attorney  that  he  lias  been  involved  in  transactions 
on  the  turf  and  been  horsewhipped  off  the  course  is  not 
iittioiiable/  for  the  creditors  the  attorney  was  charged 
with  iuiving  defrauded  were  those  he  had  made  in  his 
trani^uctioiis  on  the  turf,  not  in  his  profession  of  a.i  attor- 
ney.   If  bis  clients  were  satisfied  with  his  skill  and  atten- 
tion to  his  affairs,  it  would  not  follow  that  they  would 
withdraw  their  business  simply  because  he  did  not  pay 
his  gambling  debts.     If  the  defendant,  instead  of  saying, 
'IIo  has  defrauded  his  creditors,"  had  said,  "  lie  hj>s  de- 
frauded his  clients,"  he  might  have  been  held.    In  a  case 
iu  the  time  of  Charles  I.  it  was  ruled  that  a  man  was  not 
liable  for  saying  of  a  lawyer,  **  Thou  has  no  more  wit  than 
a  jackanapes."    But  he  would  substitute  "  law  "  for  "wit " 
at  his  peril.''    To  charge  a  physician  with  adultery  is  not 
actionable.     Abstaining  from  acts  of  incontinence  is  no 
part  of  the  profession  of  a  physician,  and  the  committing 
or  not  committing  adultery  has  nothing  to  do  with  the 
[exercise  of  his  profession;  the  latter  is  no  more  his  duty 
Itbaii  the  duty  of  every  other  man.     If  his  professional 
Iskill  was  great,  his  practice  would  hardly  suffer  from  such 
la  charge.^    Words  spoken  of  a  physician  of  mere  con- 
Itempt,  implying,  not  professional  ignorance,  but  a  want 
jof  professional  dignity,  manifested  by  a  petty  attention  to 
Ismail  and  simple  cases,  have  been  held  not  actionable,  as, 
rile  is  a  twopenny  bleeder."*     It  is  not  actionable  to 
lay  of  a  keeper  of  a  restaurant,  "You  are  an  infernal 


'Doyley  v.  Roberts,  3  Bing.  N.  C. 
"These  words,"  said  Tindal, 
p.  J,,  "though  spoken  of  an  attorney, 
lonot  touch  him  in  his  profession  any 
pore  than  they  would  touch  a  person 
V  any  other  trade  or  profession.  It 
kfouuil,  indeed,  that  the  words  have 
I  tendency  to  injury  him  morally  and 
pe,s3ionally,  and  that  is  true;  but 
j  applies  equally  to  all  other  profes- 
loiis,  for  a  person  cannot  say  any- 
king  disparagingly  of  another  that  has 
kt  that  tendency."      "When   the 


jury,"  said  Vaughan,  J.,  "  found  that 
these  words  were  not  spoken  of  the 
plaintiff  in  his  character  of  attorney, 
they  took  the  sting  out  of  the  imputa- 
tion." And  see  Van  Epps  v.  Jones, 
50  Ga.  238. 

•'  Palmer's  Case,  Godb.  441. 

»  Ayre  v.  Craven,  2  Ad.  &  E.  2.  But 
a  charge  that  a  physician  took  advan- 
tage of  his  position  to  seduce  or  commit 
adultery  with  a  patient  would  be  ac- 
tionable per  ae. 

*  Foster  v.  Small,  3  Whart.  138.      . 


§  12C0 


SLANDER  AND   LIBEL. 


2254 


rogue  and  s-\vindler,"  for  there  might  be  very  sncccssful 
rostaurant-kocpers  who  were  both  rogues  and  swindlers;' 
nor  to  call  a  carpenter  a  rogue,  or  a  cooper  a  varlct  aufl 
a  knave;''  or  to  say  of  a  working  stone-mason,  "  lie  w;i> 
the  ringleader  of  the  nine-hour  system,"  and  "  lie  has 
ruined  the  town  by  bringing  about  the  nine-hour  sys- 
tem," and  "ho  has  stopped  several  good  jobs  from  being 
carried  out  by  being  the  ringleader  of  the  system  at 
Llanclly";*  or  to  say  of  <\  justice,  "He  is  a  damned 
rogue."  *  In  an  old  case  the  plaintiff  was  a  daiiein«^. 
mistress  for  girls.  The  defendant  said  of  her:  "  She  j^ 
as  much  a  man  as  I  am;  she  got  J.  S.  with  child.  She 
is  a  hermaphrodite."  This  was  held  not  actionable.  The 
court  said  tliat  the  charge  was  not  peculiarly  injurious  to 
her  profession.  If  to  teach  dancing  to  girls  femal(>s  were 
always  required,  and  none  others  would  be  employed,  the 
language  would  have  been  actionable;  but  the  court  took 
notice  of  the  fact  that  men  were,  even  more  fre(|uently 
than  women,  engaged  in  teaching  dancing  to  both  scxe:.' 

Illustrations.  —  A.  was  a  physician,  and   C.  said  of  liim; 
*'  Have  you  neard  that  it  is  out  who  are  the  parties  in  tho 
crlm.  con.  affair  that  has  been  so  long  talked  about,  —  Dr.  A.?'  | 
Held,   not  actionable:  Ayrc  v.  Craven,  2  Ad.   &  E.   2.    Dawj 
intended  to  employ  the  plaintiff,  a  surgeon  and  accouclu  ur.  at 
his  wife's   approaching  confinement;  but   the  defendant  to!(l| 
Daws  that  the  plaintiff's  female   servant  had  had  a  cliilJ  by 
the  plaintiff;  Daws   consequently  decided    not  to  employ  tlie 
plaintiff";    Daws   told  his  mother  and    his   wife's   sister  what! 
defendant  had  said,  and  consequently  the  plaintiff's  practice 
fell  off  considerably  among  Daws's  friends  and  acqnuintaiicri 
and  others.     The  fee  for  one  confinement  was  a  guinea.    ILU.l 
that  the  action  lay,  special  damage  being  proved;  that  the 


'  Bratly  v.  YouMen,  Kerforcl  and 
Box's  Digest  of  Victorian  Ileports, 
709. 

*  Lancaster  r.  French,  2  Strange, 
799;  Cotes  v.  Kcblo,  Cro.  Jar'.  204. 

'  Miller  v.  Daviil,  L.  R.  9  Com.  P. 
118. 

*  Oakley  v.  Farrington,  1  Johns. 
Cas.  130;  1  Am.  Dec.  107. 

"  Wotherhead  v.  Armitage,  2  Lev. 


233.  In  Malone  v.  Stewart,  1.)  Oliio,| 
319,  45  Am.  Dec.  577,  thu  .siiijreuiel 
court  of  Ohio  held  that  to  cill  any  I 
woman  a  hermapliroilitu  was  Mtm-l 
ahlu per  ac,  replying,  in  rji.'^WLr  tothel 
objection  that  such  a  comhisioawiil 
in  the  teeth  of  all  the  preccilints,  "lif 
is  sutiicient  that  this  court  u  ill  iiotperl 
mit  so  gross  a  wrong  to  yjna  witbootl 
a  remedy." 


2255 


SLANHES. 


§  12G0 


>ry  successful 
d  swin<ll<'rH;' 
r  a  vai'U't  and 
son,  "11^'  wa« 
tind  "  lie  luis 
linc-hoiu  sy=. 
ba  from  being 
the  system  at 
is  a  <luinn(Ml 
as  a  diuiciiis;- 
'  her:  "  She  i; 
ith  child.     Slie 
jtionablc.    The 
I'ly  injurious  to 
•Is  females  were 
3  eraployed,  the 
t  the  court  tonk 
nore  fre(iviontly 
g  to  both  sexes.' 

C.  said  of  lunr. 
ie  parties   in  the 
ibout,-I)r.A,?', 
.  &  E.  2.    \)m\ 
nd  accouclKiir. at 
;e  defendant  tolil  | 
d  had  a  chiU  by 
lot  to  employ  the 
wife's   sister  what 
hiintiif's  pvailice 
ul  ac(iuaintaiic« 
a  guinea.    Ilk] 
proved;  that  the 

mev.  Stewart,  L")  Ohio,  I 
)ec.  577.  tho  s.ij.r* 
beta  that  to  cill  m 
aphrodite  wa^  ''^t'* 
lying,  ill  iuiMVcr  to tne 

such  a  co.^aasm«^™ 
all  the  prccf.l.uts,  i>l 
t  this  court  wiUnotpl 
wrong  to  pass  witboHI 


plaintifl"  was  entitled  to  moro  than  tho  one  guinea  damages; 
tliat  tho  jury  should  give  him  such  sum  as  they  coiisidorcd 
l)ii\vs^H  custom   was  worth  to  him;  hut  that  tho  jiiry  dearly 
could  Dot  iu  this  action  give  him  anytliing  for  tho  j.'ifneral  de- 
cline of  his  business:  Dixon  v.  Smith,  6  Hurl.  &  N.  151);  21)  L.  J. 
Kx.  125.     1'.  was  an  attorney,  and  J.  said  of  hiiu:  "  I  have  taken 
out  a  summons  to  tax  his  bill;  I  shall  bring  him  to  bo<ik,  and 
h.ive  him  struck  off  the  roll."     Held,  not  actionahle:  Phillips 
V.  .hnixcii,  2  Esp.  624.'     S.  was  a  pork-butcher.     T.  Baid  of  iiim: 
"You  are  a  bloody  thief.     Who  stole  F.'s  pigs?     You  did  you 
bloody  thief,   and.  I  can   prove   it;   you  poisoned  them  with 
nni.^tard  and  brimstone."     i/c/(/,  not  actionable:  Slhlcy  \.  Tom- 
Uns,  1  Tyrw,  90.'''     B.  was  a  stay-maker,  having  in  his  employ 
a  female  assistant.     C.  said  of  him:  "  Tiio  business  of  a  stay- 
maker  does  not  keep  him,  hut  tho  prostitution  of  the  person  in 
tlm  shop;  after  it  is  shut  it  is  as  bad  as  any  bawdy-house  in 
the  town."    Held,  not  actionable:  Brnyne  v.  Cooper,  5  Mees.  & 
Vv,  21').*     L.  was  clerk  of  a  gas  company,  and  A.  said  of  him: 
'•You  are  a  fellow,  a  disgrace  to  the  town,  unfit  to  hold  your 
gituatiou  for  your  conduct  with  whores."     Held,  not  actionable: 
LuiiJiyx.  Allday,  1  Cromp.«fe  J.  301.*     F.  was  a  dealer  and  spec- 
ulator in  land,  and  H.  said  of  him:  "  He   cheated   me  out  of  a 
hundred  acres  of  land."     Held,  not  actionable:  FcUowes  v.  Hun- 
ter, 20  U.  C.  Q.  B.  382.     I.  was  the  proprietor  of  a  public  house 
ami  garden,  and  M.  said  of  him:  "  He  is  a  dangerous  man;  he 
is  a  desperate  man.     I  am  afraid  to  go  to  his  house  alone.     I 
am  afraid  of  my  life."     Held,  not  actionable:  Ireland  v.  Mc- 
Clarrish,  l  Sand.  115.    A  was  a  livery-stable  keeper,  and  B  said 
of  him:  "  Y'ou  are  a  regular  prover  under  bankruptcy;  you  are 
a  regular  bankrupt-maker.     Held,  not  actionable:  Alexander  v. 
Angle,  1  Cromp.  &  J.  143;  Angle  v.  Alexander,  7  Bing.  123.^    P. 


'  It  VMS  said  in  this  caae  that  if 
tlie  words  hail  been,  "  He  deserves  to 
be  struck  otf  the  roll,"  they  would 
liavu  Iji'uii  actionable.  As  it  was, 
tliey  were  spoken  only  with  reference 
to  ail  overcharge  in  a  single  bill,  — 
sometliiiii;  not  likely  to  seriously  in- 
jure tlic  reputation  of  a  professional 
man. 

'  III  this  case,  the  words  did  not 
show  that  S.  was  any  more  an  im- 
proper pcr.son  to  carry  on  the  business 
of  a  pork-butcher  thanany  other  busi- 
ness. No  improper  act  in  his  trade 
was  cliarged,  as  would  have  been  had 
the  words  been,  "You  poisoned  F.'s 
pigs  aud  sold  them,"  or  "You  sell 
tainted  meat." 

^  A  luau'a  moral  conduct  "  after  the 


shop  is  shut "  does  not  affect  his  busi- 
ness if  he  is  honest  iu  his  dealings. 

*The  words  spoken  of  tho  plaintiff 
did  not  impute  to  him  the  want  of  any 
qualification  which  a  clerk  should 
have,  or  any  misconduct  which  would 
make  him  unfit  to  discharge  faithfully 
and  correctly  all  the  duties  of  a  clerk. 

'  "This  does  not  seem  to  me,"  said 
Tindal,  C.  J.,  "  to  fall  within  that 
class  of  cases  which  relates  to  impu- 
tations upon  a  person  with  reference 
to  his  trade.  To  say  of  a  c.irpenter 
that  he  is  a  bungler  is  actionable,  for 
it  imputes  to  him  a  want  of  skill;  to 
say  of  a  vendor  that  his  goods  are 
rotten,  or  that  he  keeps  false  books, 
which  is  an  imputation  of  dishonesty 
iu  hia  trade,  is  also  actionable;  bo^ 


g§  12G1,  1202  SLANDER  AND   LIUEL. 


225Q 


was 
your 


nn  innkeeper;  C.  said  of  him:  "  You  have  stolen  poodH  in 
^„_.' house,  and  you  know  it."  i/c?t/,  not  actionable:  J'ntmnn 
V.  CoUliia,  11  U.  C.Q.  B.  63.  C.  was  a  cooper,  and  K.  Huiil  of 
him:  "  lie  is  a  very  varlet  and  a  knave.'  llcldj  not  actionablo: 
Cotca  V.  Ketle,  Cro.  Jac.  204. 

§  1261.  Act  Referred  to  must  be  of  or  Incident  to  his 
Calling.  —  Tho  language,  to  bo  actionable,  must  rct(M'  to 
some  act  or  transaction  which  is  a  part  of  or  incident  to  (ho 
person's  occupation.  Thus  it  has  been  hold  actionable  to 
charge  that  a  merchant  keeps  falso  books,  for  a  merchant 
must  keep  books,  and  to  say  of  him  tha',  ho  keeps  false 
books  must  necessarily  injure  him  in  tho  estimation  of  tho 
public  with  which  he  deals.*  So  of  a  blacksmith,  for  tho 
keeping  of  a  book  of  accounts  is  incident  to  the  business 
of  a  blacksmith,  and  necessary  in  this  country,  where 
credit  is  usually  given  as  well  by  tho  mechanic  as  by 
tho  merchant  and  professional  man.^  But  to  say  of  a 
farmer  that  he  keeps  false  books  has  been  held  not  action- 
able." This  is  a  different  calling,  with  different  modes 
of  dealing.  A  merchant  sells  to  the  public  generally;  a 
blacksmith  works  for  tho  public  generally.  But  a  fanner 
sells  his  produce  in  large  quantities;  ho  carries  it  abroad 
to  market;  and  he  delivers  it  for  cash,  and  not  on  credit. 
Books  of  account  are  not  necessarily  incident  to  his 
business.  Other  illustrations  of  this  rule  may  arise. 
Thus  to  say  of  a  painter  that  he  is  a  poor  hand  at  making 
a  coat,  or  of  a  tailor  that  he  never  made  a  boot  that  fiited, 
or  of  a  lawyer  that  he  is  an  execrable  musician,  would 
obviously  in  each  case  afford  no  ground  of  action. 

§  1262.  And  mnst  be  Applied  thereto.  —  Where  the 
words  have  such  a  relation  to  tho  party's  occupation  that 

likewise,  it  is  actionable  to  impute 
insolvency  to  a  trader,  which  affects 
his  credit;  but  tho  words  in  this  case 
are  applicable  as  well  to  a  man  not  in 
trade  as  to  a  trader,  and  are  not, 
therefore,  actionable  as  referable  to 
the  plaintiff's  trade." 


^  Backus  V.  Richardson,  5  Johns, 
476. 

*  Burtchv.  Nickerson,  17  Johns.  2k'; 
8  Am.  Dec.  390. 

^  Rathbuu  v.  Emigh,  C  Weud. 
407. 


2250 

n  poodn  in 

K.  KiiM  of 
actionaljLu: 


ient  to  his 

,st  retVr  to 
dent  to  tho 
tiouiiblo  to 
a  mcrcliant 
keeps  t'ulso 
atiou  of  tho 
kith,  lor  tho 
he  business 
ntry,  Avlicre 
lanic  as  by 
to  say  of  a 
i  not  action- 
erent  modes 
jgenerally;  a 
ut  a  farmer 
,e3  it  abroad 
lot  on  credit. 
.dent   to  his 
may   arise. 
d  at  making 
t  that  lilted, 
ician,  would 
ition. 

Where  tlie 
ipation  that 

rdson,  5  .Ti'lins. 
an,  17  Jolms-  '210; 
aigh,    0    VVeud. 


2257 


SLANDER. 


12C2 


they  directly  tend  to  injure  liim  in  respect  to  it,  they  are 
actionable/  although  not  applied  by  the  speaker  to  that 
occupation;  but  when  they  convey  only  a  general  impu- 
tation upon  his  character,  equally  injuriou:^  to  any  one, 
tlicy  are  not  actionable  unless  such  application  be  made.* 
Thus  in  a  New  York  case,'  the  plaintiff  had  l)oen  employed 
as  clerk  by  tho  firm  of  B.  &  M.     On  leaving  them  ho  was 
employed  by  C.     Subsequently  B.   said    to  C  that   tho 
plaintiff  had  become  such  a  notorious  liar  that  he  could 
placo  no  confidence  in  him;  that  ho  had  strong  cause  to 
doubt   his   honesty.     Tho   words   were   hold    acti  'ruble. 
"Tho  idea,"  said  tho  court,  "that  a  man  may  speak  to  a 
merchant  about  the  dishonesty  of  ono  employed  by  him,, 
and  bo  able  to  separate  the  charge  of  dishonosij  from  his 
acts  as  clerk,  and  placo  them  upon  tho  individual  oiu y  in, 
his  private  reialions,  is  delusive."     So  to  charge  that  a 
Dierch'  nt  or  a  trader  cannot  pay  his  debts  is  actionable, 
though  his  mercantile  debts  are  not  expressly  referred 
to.    Insolvency  is  necessarily  connected  with  trade.     If 
a  man  cannot  pay  his  private  debts,  he  cannot  pay  his 
mercantile   debts.     The    damage  is  the  same  in   either 
case;  for  if  a  merchant  be  incapable  of  paying  all  his  debts, 
whether  in  or  out  of  the  trade,  his  mercantile  credit, 
which  depends  on  his  general  solvency,  must  be  injured.* 

Illustrations. —  A  was  a  brewer.  B  said,  of  him:  "  lie  is  a 
sorry,  pitiful  fellow,  and  a  rogue;  ho  compounded  his  debts  at 
five  shillings  in  the  pound."  It  was  not  shown  that  tho  words 
were  sixdien  of  him  in  his  business.  Held,  actionable:  Stanton 
V,  Smith,  2  Ld.  Raym.  1480.  J.  was  a  brewer,  and  L.  said: 
'I  will  bet  five  pounds  to  one  pound  that  J.  was  in  a  sponging- 
liouse  for  debt  within  the  last  fortnight,  and  I  can  produce  the 
man  who  locked  him  up;  the  man  told  me  so  himself."  Ad- 
mitting that  the  words  were  spoken  of  him  in  his  private 
character,  they  were  held  actionable:  Jones  v.  Littler,  7  Mees. 
&  W.  423.    D.  was  a  merchant,  and  R.  said  of  him:  "He  was 


'  Fowlc-i  V.  Bowen,  30  N.  Y.  20. 
'  Jamu^j  r.  Brook,  9Q.  B.  7;  Sauder- 
m\  r.  Ciildwell,  45  N.  Y.  398;  6  Am. 
i  Rep,  105. 


»  B'owles  V.  Bowen,  30  N.  Y.  20. 
^•See  coaea  post. 


§1263 


8LAI7DER  AND  LIBEL. 


2258 


broke."  The  declaration  charged  that  the  words  were  spoken 
of  and  concerning  him,  without  adding  "as  a  merchant." 
Held,  Bufi&cient:  Davis  v.  Ruff,  Cheves,  17;  34  Am.  Dec.  584. 
J.  was  a  superintendent  of  pohce.  B.  said  of  him:  "  Ho  has 
been  guilty  of  conduct  unfit  for  publication,"  but  not  that  it 
was  in  the  course  of  his  office.  Held,  not  actionable:  James  v. 
Brook,  9  Q.  B.  7.  The  defendant  published  a  newspaper 
article  stating  in  substance  that  the  body  of  a  man,  apparently 
frozen  to  death,  had  been  found  in  a  highway;  that  the  plaintiff 
as  coroner  was  proceeding  to  hold  an  inquest  on  it,  wlien  a 
physician,  after  a  careful  examination,  pronounced  the  man 
alive,  and  after  some  twenty-four  hours'  labor,  restored  him  to 
consciousness.  The  plaintiff  was  also  a  physician,  but  the 
article  said  nothing  of  his  professional  character.  Held,  not 
actionable  per  se:  Purdy  v.  Rochester  Printing  Co.,  96  N.  Y. 
372;  48  Am.  Rep.  632. 

§  1263.  Chargfe  as  to  Particular  Transaction  not  Ac. 
tionable  —  Exception.  —  As  the  charge  must  be  of  some- 
thing  that  affects  generally  the  character  of  the  party  in 
his  occupation,  words  imputing  want  of  skill  or  ignorance 
in  a  particular  transaction  are  not  actionable  per  se}  lu 
Poe  V.  Dr.  Mendford^  the  leading  case  on  this  point,  P. 
was  a  physician,  and  M.,  another  physician,  said  of  hua: 
"  P.  hath  killed  Mr.  A  with  physic,  which  physic  was  a 
pill,  and  the  vomit  was  found  in  his  mouth,  and  Dr.  B 
and  Dr.  C  were  there,  and  found  it  so,  and  it  is  true.' 
Coke,  for  the  defendant,  argued  that  the  action  would  not 
lie,  because  a  physician  might  involuntarily  kill  a  patient, 
not  knowing  the  disease,  and  yet  no  discredit  would  attach 


'  Rodgers  v.  Kline,  56  Miss.  808;  31 
Am.  Rep.  389;  Gunning  v.  Appleton, 
68  How.  Pr.  471.  "A  physician  may 
mistake  the  symptoms  of  a  patient^  or 
may  misjudge  as  to  the  nature  of  his 
disease,  and  even  as  to  the  powers  of 
medicine,  and  yet  his  error  may  be  of 
that  pardonable  kind  that  will  do  him 
no  essential  prejudice,  because  it  is 
rather  a  proof  of  human  imperrection 
than  of  culpable  ignorance  or  unskill- 
fulness;  and  where  charges  are  made 
against  a  physician  that  fall  within 
this  class  of  cases,  they  are  not  action- 
able without  proof  of  special  dam- 


ages":  Mason,  J.,  in  Secor  v.  Harris, 
18  Barb.  425.  "  Can  it  bo  conteiuled 
that  it  is  actionable  to  say  of  a  hw^cr 
that  he  will  not  pay  his  debts,  much 
less  a  particular  debt?  I  am  not  sure  it 
would  be  actionable  to  say  of  a  lawyer, 
falsely,  that  he  would  not  pay  some 
particular  money  collected  by  liim  as 
a  lawyer,  or  that  it  would  bo  action- 
able to  say  of  a  blacksmith,  untruly, 
that  he  had  burned  a  certain  Iiorse  in 
shoeing  him":  McCay,  J.,  iu  Van 
Epps  V.  Jones,  50  Ga.  238, 
•■«  Cro.  Eliz.  589. 


2259 


SLANDER. 


§  1263 


rere  spoken 
merchant." 
I.  Dec.  584. 
a:  "Helm 
not  that  it 
lie:  James  v. 
L  newspaper 
I,  apparently 
i  the  plaintiff 
1  it,  when  a 
jed  the  man 
itored  him  to 
dan,  but  the 
■r      Held,  not 
Co.,  96  N.  Y. 


jtion  not  Ac- 

,  be  of  some- 
the  party  in 
or  ignorance 

le  per  se/    In 

,his  point,  P. 

,  said  of  hiiu: 
physic  was  a 
,h,  and  Dr.  B 
d  it  is  true." 
,ion  would  not 
kill  a  patient, 
t  would  attach 


to  him.    And  all  the  judges  agreed  that  the  action  lay  not, 
"  for  it  cannot  be  any  discredit  to  a  physician  to  say  that 
he  killed  one  with  physic;  it  is  a  usual  and  common  ex- 
pression, and  it  may  be  without  any  default  in  him,  for 
they  may  mistake  the  diseases  in  their  own  bodies,  much 
more  in  others,  and  apply  wrong  medicines,  whicli  may  be 
the  cause  of  the  patient's  death,  and  yet  no  discredit  unto 
them."    This  old  case  was  approved  and  followed  in  New 
York  in  1811.^     In  this  case  the  defendant  was  sued  for 
having  said  of  the  plaintiff,  an  attorney,  that  he  knew 
nothing  about  a  certain  suit.     It  was  held  that  the  words 
were  not  actionable,  the  court  saying:  "  There  is  not  an 
instance  in  the  books  which  we  have  met  with  of  a  suit 
sustained  for  words  charging  a  professional  man  with 
ignorance  in  a  particular  case.     To  carry  the  right  of 
action  so  far  would  be  unnecessary  for  the  protection  of 
any  profession,  and  would  be  an  unreasonable  check  upon 
the  freedom  of  discussion.     There  is  no  physician,  how- 
ever eminent,  who  is  not  liable  to  mistake  the  symptoms 
of  a  particular  disease,  nor  any  attorney  who  may  not 
misunderstand  the  complicated  nature  and  legal  conse- 
quences of  a  particular  litigation."     So  it  is  not  action- 
able per  se  to  say  of  a  physician  that  he  acted  hastily  in 
amputating  an  arm,  and  did  not  make  the  amputation  on 
his  own  judgment,  or  that  he  had  better  have  cut  off  the 
left  arm  than  the  right.''     But  the  rule  is  otherwise  if  the 
specific  act  charged  is  of  so  grave  a  nature  as  necessarily 
to  injure  the  general  reputation  of  the  plaintiff  in  his 
calling  or  profession.     In  Sumner  v.  Utley,^  the  plaintiff 
was  a  physician,  and  the  defendant  said  of  him,  in  refer- 
ence to  the  case  of  a  woman  whom  he  had  attended  at 
Ler  confinement,  when  she  was  delivered  of  twins,  both 
she  and  the  offspring  dying  shortly  afterwards:  "  He  has 
killed  three,  and  ought  to  be  hung,  —  damn  him.     They 


'  Foot  V.  Brown,  8  Johns.  66. 
'Lyade  v,  Johuaou,  39  Hun,  12. 


» 7  Conn.  258. 


§1263 


SLANDER  AND   LIBEL. 


2260 


all  died  through  his  mismanagement.  I  have  understood 
he  left  the  afterbirth,  and  a  man  that  would  do  that  ought 
to  be  hung."  Subsequently  one  Mrs.  H.  having  cm- 
l)loyed  the  plaintiff,  the  defendant  said  to  her:  "  He 
was  the  means  of  your  sickness  by  cutting  an  artery  in 
your  head.  Damn  him,  you  ought  not  to  pay  him  a  cent. 
If  Mr.  H.  had  took  him  up  for  it,  it  would  have  cost  him 
four  hundred  dollars.  It  ought  to  be  put  in  the  news- 
paper." It  was  held  that  though  the  charge  was  of  mis- 
management in  a  particular  case  it  was  nevertheless  of 
so  gross  nature  as  to  injure  the  general  professional  repu- 
tation of  the  plaintiff,  and  was  consequently  actionable.* 


'  "I  readi'v  admit,"  said  Hosmer, 
C.  J.,  iu  delivering  the  opinion  of 
court,  "that  falsehood  maybe  spoken 
of  a  physician's  practice  in  a  parti- 
cular case,  ascribiug  to  him  only  such 
a  want  of  information  and  good  man- 
agement as  is  compatible  with  great 
general  knowledge  and  skill  in  his  pro- 
fe:jsion;  and  that  when  such  a  case 
arises,  unless  some  special  damage 
exists,  his  character  will  be  consid- 
ered as  unhurt,  and  no  damages  will 
be  presumecL  But,  on  the  ot)ier  hand, 
it  is  indisputably  clear  that  a  calum- 
nious report  concerning  a  physician  in 
a  particular  case  may  imply  gross  ig- 
norance and  unskillfulness,  and  do  him 
irreparable  damage.  A  physician  may 
mistake  the  symptoms  of  a  patient,  or 
Ujay  misjudge  as  to  the  nature  of  his 
disease,  and  even  as  to  the  powers  of 
a  medicine,  and  yet  his  error  may  be 
of  that  pardonable  kind  that  will  do 
him  no  essential  prejudice,  because  it 
is  rather  proof  of  human  imperfection 
than  of  culpable  ignorance  or  unskill- 
fulness. On  the  contrary,  a  single  act 
or  omission  of  his  may  evince  gross 
ignorance,  and  such  a  deficiency  of 
skill  as  will  not  fail  to  injure  his  repu- 
tation, and  deprive  him  of  general 
confidence.  If  he  were  called  on  to 
administer  to  one  manifestly  intoxi- 
cated, and  treat  his  disease  as  if  it 
were  an  apoplexy,  no  person  of  good 
sense  after  knowledge  of  this  would 
employ  him  in  his  profession.  These 
remarks  have  a  more  striking  applica- 
tion to  the  business  of  a  surgeon  or 


man  midwife.     While  a  physician  ex- 
ercisea  a  profession  often  beset  with 
great  difficulties,  the  employment  of 
a  man  midwife  and  surgeon,  for  the 
most  part,  is  merely  mechanical.    If 
a  surgeon  were    requested    to    take 
blood  from  a  person,  and  should  pro- 
ceed  to  this  operation  by  ojjeiiing  an 
artery  instead  of  a  vein,  by  reason  of 
which  he  should  bleed  to  dcatli,  nr  if 
ho  should  amputate  a  limb  without 
having  applied  a  tourniquet  or  so'iie 
other  compression  of  the  main  arte- 
ries,   and    the    person    practiced    oa 
should  die  in  his  hands  from  loss  of 
blood, —  who  would  afterward  employ 
him?    So  if  a  man  midwife  shouM  de- 
liver a  woman  and  leave  tlie  atiorhii  th, 
whatever  may  have  been  the  iiiicieiit 
practice,  would  it  not  in  the  present 
state  of  the  art  exhibit  such  pin\  (.rful 
proof  of  ignorance  and  want  of  .skill  as 
greatly  to  injure  his  general  charac- 
ter?   On  this  subject  I  cannot  douht, 
and  should  not  be  surprised  at  the 
harsh  declaration  of  the  defeiuhuit, 
if    applied  to  such  a  one,  that  'he 
ought    to    be    hung.'    If    a  Hiirgeoa 
should  be  such  an  arrant  buiiyhr  iu 
his  profession  as  not  toknowanaitery 
in  the  head  from  a  vein,  and  shoiilJ 

fmncture  the  former  instead  of  the 
atter,  would  not  his  reputatio  i  as  a 
man  of  knowledge  aiid  skill  receive 
essential  damage?  Undoubtedl/,  in 
all  the  cases  put  the  stigma  of  gross 
ignorance  and  unskillfulness  woiihl 
juoLly  be  applied  to  him;  ai\il  iiis 
character  would  sink  under  the  re- 


;    f 


2261 


SLANDER. 


§  1263 


111  a  subsequent  case  in  New  York,  Sumner  v.  TJtley  was 
followed.  The  defendant  had  said  of  the  plaintiff,  a  physi- 
cian: "  Dr.  S.  killed  my  children;  he  gave  them  teaspoon- 
ful  doses  of  calomel,  and  they  died.  Dr.  S.  gave  them 
teasponful  doses  of  calomel,  and  it  killed  them.  They 
did  not  live  long  after  they  took  it;  they  died  right  off, 
the  same  day."     It  was  held  that  the  words  were  action- 


proach.  As  a  general  principle,  it 
can  ues'er  be  admitted  that  the  prac- 
tice of  a  physician  or  surgeon  in  a  par- 
ticuUir  case  may  be  calumniated  with 
impunity,  unless  special  damage  is 
shown.  By  confiaiug  the  slander  to 
particulars,  a  man  may  thus  be  ruined 
in  detail.  A  calumniator  might  fol- 
low the  track  of  the  defendant,  and 
bigin  Ijy  falsely  ascribing  to  a  physi- 
cian tlio  killing  of  three  persons  by 
mismanagement,  and  then  the  mis- 
taking of  an  artery  for  a  vein,  and 
thus  might  proceed  to  misrepresent 
every  single  case  of  his  practice  until 
his  reputation  would  be  blasted  beyond 
remoely.  Instead  of  murdering  char- 
acter by  oue  stroke,  the  victim  would 
be  cut  successively  in  pieces;  and  the 
only  ditiereuce  would  consist  in  the 
manner  of  effecting  the  same  result. 
The  redress  proposed  on  the  proof  of 
special  damage  ia  inadequate  to  the 
case.  Much  time  may  elapse  before 
the  fact  of  damage  admits  of  any  evi- 
dence; aud  then  the  proof  will  always 
fall  short  of  the  mischief.  In  the 
mean  time  the  reputation  of  the  ca- 
lumniated person  languishes  and  dies. 
....  I  think  that  prejudice  to  the 
plaintiff  in  his  profession,  as  the  nat- 
ural and  probable  consequence  of  the 
words,  must  inevitably  result.  That 
the  defendant  intended  to  impute  to 
the  plaintiff,  by  the  words  spoken,  the 
most  monstrous  and  culpable  ignorance 
aud  niismauagement,  it  is  impossible 
for  mo  to  doubt.  Surely  he  would  not 
have  execrated  him,  and  declared  that 
he  ought  to  die  an  ignominious  death, 
and  that  his  practice  ought  to  be  pub- 
lislicd  iu  a  newspaper,  if  he  meant 
nothing  more  than  what  the  defend- 
ant would  have  the  court  suppose; 
that  is,  to  impute  to  the  plaintiff  the 
counnou  imperfections  of  liumauity. 
Ou  the  contrary,  every  person  of  sense 


or  reflection  who  should  believe  the 
imputations  cast  upon  him  would  con- 
sider him  as  a  man  of  ignorance  and 
unskillfulness,  and  unworthy  of  con- 
fidence. And  this  impression  would 
bo  deepened  by  the  expression  that 
the  plaintiff  was  liable  to  heavy  dam- 
ages; for  it  has  often  been  decided  that 
nothing  short  of  gross  ignorance  and 
want  of  skill  will  authorize  a  suit 
against  a  practicing  physician.  What 
woman  would  trust  herself  in  such 
hands,  with  full  information  that  three 
persons  had  perished  under  his  cul- 
pable mismanagement?  Or  what  per- 
son would  employ  as  a  surgeon  the 
man  who  ought  to  be  hung  for  cutting 
an  artery?  I  would  frown  on  every 
action  of  slander  brought  to  gratify  a 

Eetulant  and  quarrelsome  disposition, 
ut  when  the  reputation  of  a  skillful 
man  is  assailed  by  wanton  calumny, 
I  shall  ever  be  disposed  to  go  to  the 
full  length  of  principle  to  afford  him 
adequate  redress."  Peters  and  Lau- 
man,  JJ.,  concurred  in  the  judgment 
of  the  chief  justice.  Daggett,  J.,  dis- 
sented, being  of  opinion  that  the  words 
did  not  impute  to  the  physician  igno- 
rance or  malpractice  in  his  profession 
generally.  "I  cannot,"  said  he,  "so 
imderstand  them.  They  are  employed 
only  about  his  treatment  of  a  pregnant 
woman  and  her  twin  children,  —  one 
dead  at  the  birth,  and  the  other  dying 
with  its  mother  soon  aftCi  its  birth. 
As  this  idea  seems  to  be  embraced  by 
my  brethren  and  to  influence  their 
opinions,  I  have  looked  with  atten- 
tion into  that  part  of  the  declaration 
brought  into  view  by  this  motion,  aud 
it  strikes  me  as  entirely  silent,  except 
as  to  the  plaintiff's  management  in  the 
case  stated,  and  not  to  impute  any  ig- 
norance except  in  the  manayemuut  of 
this  particular  case." 


81264 


SLANDER  AND   LIBEL. 


2262 


able  per  se}  Words  imputing  a  want  of  integrity,  whether 
used  in  reference  to  a  man's  general  conduct  or  to  his 
behavior  in  a  particular  case,  are  of  course  equally  action- 
able. 

Illustrations.  —  C.  was  a  physician  who  had  treated  a 
female  patient,  cue  S.  M.  said  of  him:  "If  Dr.  C.  had  con- 
tinued to  treat  her,  she  would  have  been  in  her  grave  before 
this  time.  His  treatment  of  her  was  rascallv."  Held,  not  ac- 
tionable: Camp  V.  Martin,  23  Conn.  86.  'f'he  words  alleged 
were:  "You  are  a  thief,  a  rogue,  and  a  robber,  and  I  can  prove 
it."  There  was  evidence  tending  to  show  that  plaintiff'  had 
gone  into  defendant's  house  in  his  absence,  and  taken  a  boy 
away  by  force  for  an  alleged  crime,  and  in  the  affair  used  harsh 
language  to  and  greatly  terrified  defendant's  wife,  with  whom 
he  was  unacquainted.  Returning  a  few  moments  later,  defend- 
ant, finding  his  wife  much  excited,  and  learning  the  cause,  went 
to  plaintiff  for  an  explanation,  and,  according  to  some  of  the 
testimony,  was  received  with  insult,  whereupon  a  quarrel  on- 
sued,  in  which  he  used  the  language  complained  of  The  court 
charged  that  if  defendant's  language  was  a  mere  outburst  of 
passion,  induced  by  plaintiff's  conduct  towards  his  wife  and 
himself,  and  was  neither  intended  nor  understood  by  the  by- 
standers to  charge  plaintiff  with  the  commission  of  a  crime, 
they  should  find  for  defendant,  Held,  proper:  Ritchie  v. 
Stenius,  Mich.,  1889. 

§  1264.  Comparison  as  to  Merits  not  Actionable.  —  But 
comparisons  made  between  professional  men,  and  opinions 
publicly  expressed  of  their  relative  merits,  are  not  action- 
able, even  although  they  cause  damage.  For  example:  A 
la  an  attorney.     B  has  employed  him  in  certain  trans- 


•  Secor  V.  Harris,  18  Barb.  425.  But 
Mason,  J.,  who  delivered  the  opinion 
of  the  court,  inisappreL ended  the  scope 
of  the  rr.iing  in  Sumner  v.  Utloy.  He 
evidencly  entertained  the  idea  that 
both  Poe  V.  Dr.  Mendford  and  Foot 
».  Brown  had  been  overruled  in  that 
case,  together  with  the  general  prin- 
ciple which  they  established.  But  in 
Poe  r.  Dr.  Mendford  and  Foot  v. 
Brown  it  was  decided  that  the  lan- 
guage in  each  case  respectively  im- 
puted simply  a  want  of  skill  in  a 
particular  transaction.  The  question 
la  Sumner  v.  Utley  was,  whether  the 


words  charged  the  physician  with 
mere  ignorance  in  a  particular  cbo, 
or  with  a  want  of  general  profo.ssioiul 
knowledge  and  skill.  On  this,  as  we 
have  seen,  the  judges  diflferud,  Ijut 
they  did  not  diflfer  as  to  the  priuciyles 
of  the  law  of  slander.  The  oliiif  jus- 
tice and  the  majority  of  the  court 
thought  that  the  words  did  impute 
to  the  plaintiflF  general  incoinpetwiee 
in  his  profession,  the  dissenting  jiu1l;c 
that  they  did  not.  It  was  the  apiili- 
cation  of  a  legal  rule,  and  not  it-;  ex- 
istence or  propriety,  that  was  deter- 
mined in  Sumuer  v,  Utley. 


2263 


SLANDER. 


§1265 


tty,  whether 
ct  or  to  his 
lally  actioa- 


\d  treated  a 
.  C.  had  con- 
grave  before 
Held,  not  ao- 
Yords  alleged 
d  I  can  prove 
plaintiff  had 
I  taken  a  boy 
air  used  harsh 
fe,  with  wlioiu 
i  later,  defeiid- 
;he  cause,  went 
to  some  of  the 
a  quarrel  en- 
.  of.    The  court 
ere  outburst  of 
s  his  wife  and 
Dod  by  the  by- 
on.  of  a  crime, 
er:    Ritchie  v. 


onable.  —  But 

,  and  opinions 
ire  not  action- 
)r  example:  A 
certain  trans- 

le  physician  with 
a  particular  cibO, 
j'eneral  professional 
11,  Ou  this,  as  wo 
dges  differed,  but 
aa  to  the  princiiiles 
er.  The  chief  ji-.s- 
jrity  of  the  court 
words  did  impute 
leral  incoinijcteuce 
he  dissenting  juilge 
It  was  the  aiiph- 
ule,  and  not  it-;  ex- 
by,  that  was  deter- 
I.  Utley. 


actions  for  him,  but  overhearing  C  say,  "  D  is  a  much 
better  lawyer  than  A,"  he  takes  away  his  business  from 
A  and  gives  it  to  D.  Again,  E  is  a  physician,  and  F  says 
of  him,  "  He  is  nowhere  as  a  doctor  compared  to  G," 
whereby  H  employs  G  instead  of  E,  as  he  had  intended  to 
do.  Here  are  words  spoken  of  persons  in  their  respective 
professions,  which  not  only  tend  to  their  injury,  but  ac- 
tually do  them  damage,  yet  they  do  not  render  the 
speakers  liable  to  suits  for  damages. 

§  1265.  Other  Words  not  Actionable  Except  in  Case  of 
Special  Damage. — No  other  words  except  those  mentioned 
in  the  three  last  divisions^  are  actionable  per  se.  Thus  to 
accuse  a  man  of  fraud,  dishonesty,  immorality,  or  any 
vicious  and  dishonorable  (but  not  criminal)  conduct, 
or  to  otherwise  make  a  charge  calculated  to  wound  his 
feeMngs  or  disgrace  him,  is  not  actionable,  unless  it  has 
produced  as  its  natural  and  necessary  consequence  some 
pecuniary  loss  to  the  plaintiff.''  Therefore  it  is  not  action- 
able per  se  to  say  of  a  man,  "  Thou  art  a  scurvy  bad  fel- 
low";'* or  that  he  is  a  swindler;*  or  to  charge  a  man  with 
immorality  or  adultery,"  or  drunkenness,"  or  that  he  is 
insane,'  or  that  he,  a  government  employee,  spoke  disre- 
spectfully of  the  Secretary  of  the  Treasury  and  others  of 


» See  §§  1240-1248. 

» See  ante,  §§  1246,  1247;  Alfele  v. 
Wright,  17  Ohio  St.  238;  93  Am.  Dec. 
615.  But  in  Ohio,  on  sentimental 
grounds  .apparently,  the  plaintiff  being 
a  young  woman,  it  was  hold  action- 
able 3*f'r  *•«  to  call  a  person  a  hermaph- 
rodite: Malono  V.  Stewart,  15  Ohio, 
319;  45  Am.  Dec.  577;  Alfele  r. Wright, 
17  Ohio  St.  238;  93  Am.  Dec.  G15. 
See  Abrams  v.  Foshee,  3  Iowa,  274, 
60  Am.  Dec.  77,  where  this  case  is  criti- 
cised. And  in  the  South  in  slavery 
times,  it  was  held  that  to  charge  a 
white  person  with  being  a  mulatto,  or 
having  negro  blood  in  him,  was  ac- 
tionable per  se,  because  it  degraded 
liirn:  Klduu  v,  Legore,   1    Bay,    171; 


Woodv.  King,  1  Nev.  &  M.  184;  At- 
kiuson  V,  Hartley,  1  McCord,  203.  In 
Michigan,  in  a  recent  case,  words  char- 
ging a  wife  with  deserting  her  husband 
in  his  sickness  were  held  actionable 
per  se,  in  connection  with  words  for- 
bidding all  persons  to  give  licr  harljor 
or  trust  on  her  husband's  account: 
Smith  u.  Smith,  Mich.,  ISS!). 

■^  Fisher  v.  Atkiuaon,  1  Kollo  Abr. 
43. 

*  Black  V.  Hunt,  2  L.  R.  Ir.  10. 

'  Ayre  v.  Craven,  2  Ad.  &  E.  2; 
Lumby  v.  AUday,  1  Cromp.  &  .) .  301 ; 
Brayne  v.  Cooper,  5  Mces.  &  W.  249. 

•Seevyi'.  Viall,  R.  I.,  1SS9. 

'  Count  Joannes  r.  Burt,  6  Allen, 
236;  83  Am,  Dec.  625. 


§1265 


SLAlfDBB  AND  LIBEL. 


2264 


his  superiors;^  or  charging  that  a  person  without  consid- 
eration  obtained  notes  from  one  whose  mental  condition 
incapacitated  him  for  business;''  or  to  say  of  one  that  he 
is  a  man  of  bad  character,  in  the  neighborhood  in  which 
he  lives,  as  regards  truth  and  voi  u;ity,  and  that  the 
speaker  would  not  believe  him  on  oatn;'  or  charging  one 
with  being  a  bastard;*  or  charging  a  woman  with  being 
an  inhuman  step-mother,  and  with  beating  her  child  over 
the  head  unmercifully  with  a  club;^  or  that  B,  a  woman, 
had  a  child,  and  that  A  took  it  away  and  buried  it;®  or 
charging  that  "on  the  night  the  ballot-boxes  were  stolen 
from  the  sheriff's  office  defendant  was  up-town,  ....  and 
saw  plaintiff  sitting  on  the  court-house  steps  at  nine  o'clock 
at  night";'  or  charging  that  the  plaintiff  administered 
morphine  to  another  on  the  day  he  made  his  v  ill,  and  that 
if  it  had  not  been  for  that  the  plaintiff's  dau^^hters  would 
not  have  got  what  they  did.®  In  a  late  case,  the  defendant 
charged  the  plaintiff  with  "  bearing  down "  the  scales 
when  defendant's  stock  was  weighed,  and  "lifting  up" 
when  plaintiff's  was  weighed.  The  first  part  of  the  charge 
imputed  an   act  of  wanton  mischief  which   was  of  no 


'  Knight  V.  Blackford,  3  Mackey, 
177,  51  Am.  Kep.  772,  thecourt  saying: 
•'  Suppose  I  should  go  to  the  Secretary 
of  the  Treasury,  and  say  to  him  that 
a  certain  clerk  in  his  department  was 
in  affluent  circumstances  and  did  not 
need  otHce,  and  that  I,  on  the  other 
hand,  did  need  it;  that  the  Secretary 
should  turn  him  out  on  the  strength 
of  that  statement,  and  put  me  in. 
That  would  be  a  damaging  statement 
on  my  part,  and  yet  uo  action  for 
slander  could  be  based  upon  it.  So 
that  the  question  which  meets  us  on 
the  threshold  of  the  case  is,  whether 
the  words  alleged  in  this  declaration 
were  defamatory  and  scandalous.  It 
will  be  observed  that  the  defendant  is 
not  charged  with  saying  anything 
about  the  plaintiff's  character,  but 
with  saying  that  the  plaintiff  dispar- 
aged somebody's  else  character;  that 
is  to  say,  that  of  the  Secretary  of  the 
Treasury,  and  that  of  some  of  his  sub- 


ordinates. It  is  not  even  complained 
that  the  defendant  accused  the  plain- 
tiff of  falsehood  in  making  these 
charges  against  the  Secretary  and 
others.  If  they  were  true,  the  plain- 
tiff would  have  had  a  right  to  make 
them.  The  declaration  does  not  com- 
plain that  the  defendant  even  imputed 
false  statements  to  the  plitirtiff,  much 
less  any  more  serious  •  •  !  -'Jim- 
quency.  The  words,  tin  .;  i-  .1-  lot 
disparage  the  c'naracDe.  ,  .uuliil 

at  all,  and  we  cannot  c:  iic  :  ';nw  an 
action  can  be  grounded'  .\  allega- 
tions that  impute  nothing  wroii;;." 

*  Trimble    v.    Anderson,    7S)    Ala. 
514. 

»  Studdard  v.  Trucks,  31  Ark.  726. 

*  Hoar  V.  Ward,  47  Vt.  657. 

*  Geisler  v.  Brown,  6  Neb.  254. 

*  Young  V.  Cook,  144  Mass.  38. 

'  Long  V.  Musgrove,  75  Ala.  158. 
8  McKidin  V.  David,  78  Ind.  445;  41 
Am.  Rep.  587. 


2265 


SLANDER. 


§1265 

benefit  to  plaintiff,  and  hence  was  not  a  charge  of  fraud- 
and  the  offense  of  using  false  pretenses  was  not  charged' 
uu  ess  It  was  stated  that  plaintiff  was  weigh-master,  and 
had  charge  of  the  weighing.'  Words  imputing  unchastity 
or  adultery  to  a  woman,  married  or  unmarried,  however 
gross  and  injurious  they  may  be,  are  not  actionable, 
unless  she  can  prove  that  they  have  directly  caused  her 
special  damage-  nor  to  charge  a  young  woman  with  self- 


»  Wilkin  V.  Tharp,  55  Iowa,  609. 

« Lynch  ^^  Knight,  9  H.  L.  Cas.  577; 
Roberts  v.  Roberts,  5  Best  &  S  384' 
AUsop  V.  Allsop,  5  Hurl.  &  N.  534- 
Shafer?;.  Ahalt,  49  Md,  171;  30  Am' 
Rep.  456.  The  word  "bitch,"  when 
apphed  to  a  woman,  does  not,  in  its 
common  acceptation,  import  whore- 
dom m  any  of  its  forms,  and  therefore 
IS  not  slanderous  per  se:  Schurick  v 
Kollman,  50  Ind.  330.  But  the  word 
applied  to  a  woman,  where  it  was 


meant  and  understood  to  impute 
whoredom,  is  actionable  per  se:  Logan 
V.  Logan,  77  Lid.  558.  To  say  of  a 
married  woman  that  she  is  pregnant, 
or  that  she  "is  in  a  fix  "  (meaning  by 
local  usage  that  she  is  pregnant)  is 
not  actionable,  but  if  spoken  of  an  un- 
married  female,  such  words  are  action- 
able:  Ackert;.  McCullough,  50 Ind.  447 
bee  ante,  Words  Charging  Crime 
^Anonymous,  60  N.  Y.  262;  19  Am. 


h  was  of  no 


1266 


BLANDER  AND  LIBEL. 


2266 


CHAPTER  LXVI- 

LIBEL. 

§  1266.  Libel  defined  —  Form  of. 

§  1267.  What  libelous  words  are  actionable. 

§  1268.  Aliter  —  Not  libelous. 

§  1269.  Libels  on  holders  of  offices. 

§  1270.  Libels  on  professional  men. 

§  1271.  Clergymen. 

§  1272.  Journalists  and  newspapers. 

§  1273.  Lawyers. 

§  1274.  Medical  men. 

§  1275.  Libels  on  merchants  and  traders. 

§  1276.  When  libel  on  thing  a  libel  on  the  individual. 

§  1277.  Slander  of  title. 

§  1278.  Slander  of  goods. 

§  1279.  Other  cases. 

§1266.  Libel  Defined  — Form  of.— Slander  is  oral 
defamation.  Libel  is  defamation  published  by  means 
of  writing,  printing,  pictures,  images,  or  anything  that 
is  the  object  of  the  sense  of  sight.^  The  writing  may 
be  on  paper,  parchment,  copper,  wood,  or  stone,  or  on 
any  kind  of  substance  in  fact,  and  may  be  made  with 
any  instrument,  pen  and  ink,  black  lead-pencil,^  or  in 
chalk  or  paint.'  So  any  mark  or  sign  exposed  to  view, 
and  conveying  a  defamatory  meaning,  is  a  libel;  as,  an 

carica- 
a  wall,' 
cflit 


anagram  or  an    allegory,*  burning   in   effigy,®  a 

ture  or  scandalous  painting,^   a  chalk-mark  on 

a  gallows   placed  before  a  man's  door,*    or   an 

or  hieroglyphics,^"  or  ironical  praise,"  or  a  picture,'- era 

rebus,"  or  a  statue,"  or  a  notice  of  the  death  of  a  living 


»  Cooley  on  Torts,  193. 

»  Geary  v.  Physic,  5  Barn.  &  C.  238. 

'  Odgers  on  Libel  and  Slander,  7. 

*  Odgers  on  Libel  and  Slander,  8. 

*  Odgers  on  Libel  and  Slander,  9. 

"  Anon.,  11  Mod.  99;  Austin  v.  Cul- 
epper,    2    Show.    313;  Du    Best   v. 
eresford,  2Cinip.  511. 
^  Mortimer  v.  McCallan,  6  Mees.  & 
W.  58. 


^  Odgers  on  Libel  and  Slander,  8, 

»  5  Rep.  125, 

"  Odgers  ou  Libel  and  Slander,  8 

''  Odgers  on  Libel  and  Slaiulor,  8. 

'*  5  Rep.  7.  As  a  picture  represent- 
ing a  man  "  playing  at  cudgels  "  with 
his  wife:  Anon.,  11  Mod.  9'J. 

"  Odgers  on  Libel  and  Slander,  8, 

"  Hawk.  P.  C.  542. 


2267 


LIBEL. 


§1267 


)el  and  Klamler,  8 
jel  and  Slaiuler.  8. 

a  picture  reiiresent- 
Liig  at  cudgels "  witb 

1  Mod.  91). 
bel  and  Slander,  S, 
542. 


person,  published  maliciously,  and  calculated  to  subject 
the  person  to  ridicule.' 

Illustrations. — The  defendant  set  up  a  lamp  on  the  wall 
adjoining  the  plaintiff's  dwelling-house,  and  kept  it  burning  in 
the  daytime,  thereby  inducing  the  passers-'  y  to  believe  that 
plaintiff's  house  was  a  brothel.  Held,  a  libel  in  effigy:  Jefferies 
V.  Duncomhef  2  Camp.  3;  11  East,  226.  A  railroad  company 
supplied  its  agents  with  a  list  of  discharged  employees,  stating 
the  reasons  for  discharge.  The  reason  in  one  case  stated  was 
'•  stealing,"  and  the  charge  was  unfounded.  Held,  a  libelous 
publication:  Bacon  v.  R.  R.  Co.,  55  Mich.  224;  54  Am.  Rep. 
372.  The  following  written  charge  was  published  by  A: 
"Charge  4.  Refusing  to  correct  George  C.  in  his  statement  as 
a  witness  before  Esq.  B,  when  I  believe  he  (J.  C.)  knew  hia 
(George's)  statement  t  as  not  true."  Held,  a  libel  by  the  writer 
on  George  C.:  Coombs  v.  Rose,  8  Blackf.  155. 

§  1267.    What  Libelous  Words  are  Actionable.  —  A 

libel  is  any  publication  (not  oral)  which  exposes  the  per- 
son complaining  to  hatred,  contempt,  ridicule,  or  obloquy, 
or  tends  to  injure  him  in  his  trade  or  calling,  impairs 
his  standing  in  society,  or  causes  him  to  be  shunned  or 
avoided  by  his  neighbors.^  Thus  it  has  been  held  libel- 
o«s  to  write  or  print  of  a  man  that  he,  a  Presbyterian, 
was  guilty  of  "gross  intolerance"  in  not  allowing  his 
hearse  to  be  used  at  the  funeral  of  hia  Roman  Catholic 


'  McBride  v.  Ellis,  9  Rich.  313;  67 
Am.  Dec.  553. 

•^Cropp  V.  Tilney,  3  Salk.  226; 
O'Brien  v.  Clement,  15  Moes.  &  W. 
435;  Villers  v.  Monsley,  2  Wils.  403; 
Colby  V.  Reynolds,  6  Vt.  489;  27  Am. 
Dec.  574;  Fonville  v.  McNoase,  Dud. 
(N.  C.)303;  31  Am.  Dec.  556;  Obaiigh 
V.  Finn,  4  Ark.  110;  37  Am.  Dec.  773; 
Miller  y.  Butler.  6  Cush.  71;  52  Am. 
Dec,  768;  White  v.  Nichols,  3  How. 
266;  Aruientrout  v.  Moranda,  8  Blackf. 
426;  Torrance  v.  Hurst,  1  Miss.  403; 
Newbraugh  v.  Curry,  Wright,  47;  Lan- 
sing V.  Carpenter,  9  Wis.  540;  76 
Am.  Dec.  281 ;  Commonwealth  v.  Clap, 
4  Mass.  103;  3  Am.  Dec.  212;  Dex- 
ter V.  Spear,  4  Mass.  115;  Bergmann 
r.  Jones,  94  N.  Y.  51;  Huse  v.  Inter- 
Ocean  Company,  12  111.  App.  627; 
Holly  V.  Gregg,  74  Iowa,  563;  Adams 


V.  Lawson,  17  Gratt.  250;  94  Am. 
Dec.  455.  "  Any  written  words  are 
defamatory  which  impute  to  the 
plaintiff  that  ho  has  been  guilty  of 
any  crime,  fraud,  dishonesty,  immor- 
ality, vice,  or  dishonorable  conduct, 
or  has  been  accused  or  suspected  of  any 
such  misconduct;  or  which  suggest 
that  the  plaintiff  is  suffering  from  any 
infectious  disorder;  or  which  have  a 
tendency  to  injure  him  in  his  office, 
profession,  calling,  or  trade.  And  so, 
too,  are  all  words  which  hold  the 
plaintiff  up  to  contempt,  hatred, 
scorn,  or  ridicule,  and  which,  by  thus 
engendering  an  evil  opinion  of  him  ia 
the  minds  of  right-tliinking  men,  tend 
to  deprive  him  of  friendly  intercourse 
and  society  ":  Odgers  on  Libel  aad 
Slander,  22. 


§1267 


SLANDER   AND   LIBEL. 


22G3 


servant;'  lliat  ho  is  "  tho  most  artful  scoundrel  that  ever 
existed,"  "  is  in  every  person's  debt,"  and  that  "  his  ruin 
cannot  long  be  delayed,"  and  that  "he  is  not  deserving  of 
the  sliglitest  commiseration";^  that  he  is  the  author  (,f 
a  false  and  malicious  report  in  circulation  in  the  town  in 
■which  ho  lives; ^  that  he  is  about  to  commence  a  suit  for 
libel,  but  that  he  will  not  like  to  bring  it  to  trial  in  n  jiiir- 
ticular  county,  "  because  he  is  known  there";'  that  ho 
sought  admission  to  a  club,  and  was  blackballed,  and 
bolted  the  next  morning  without  paying  his  debts;  ^  that 
"his  slanderous  reports  nearly  ruined  some  of  our  ])e<t 
merchants  "j**  that  "he  did  a  good  thing  in  his  sober  mo- 
ments, in  the  way  of  collecting  solc^lers'  claims  against 
the  government  for  a  fearful  percentage;  the  Mood- 
money  he  got  from  the  boys  in  blue  in  this  way  is 
supposed  to  bo  a  big  thing";'  that  "he  appears  to  have 
been  in  collusion  with  ruffians  ";*  that  he  is  "  an  ini})  of 
the  Devil,  and  cowardly  snail";'  is  a  "black-leg";"'  is  a 
"  black  sheep  ";  "  a  black-mailer;  ^"^  cheats  at  dice  and  on 
the  turf; "  that  he  was  convicted  of  libel,  and  sentenced  to 
prison  therefor;"  that  he  is  a  "  convicted  felon";''  that 
he  is  cruel  to  his  wife,  who  has  summoned  him  before  tlie 
magistrates;'"  that  he  is  a  "defaulter";"  that  he  "has 
been  deprived  of  a  participation  in  the  chief  ordinance  of 
the  church  to  which  he  belongs,  and  that,  too,  by  rcasoii 
of  his  infamous,  groundless  assertions";'*   that  ho  is  a 


■  Teacy  v.  McKenna,  4  Ir.  0.  L. 
Rep.  374. 

■•'  Rutherford  v.  Evans,  6  Bing.  451; 
8  L.  J.  C.  P.  86. 

»  Colby  V.  Reynolila,  6  Vt.  489;  27 
Am,  Dec.  574. 

*  Coojjoi-  V.  Greeley,  1  Denio,  347. 

*  O'Brica  v.  Clement,  16  Mees.  & 
W.  159;  4  Dowl.  &  L.  343. 

*  Cramer  v.  Noonan,  4  Wis.  231. 

'  Sanderson  v.  Caldwell,  45  N.  Y. 
398;  6  Am.  Rep.  105. 

»  Snyder  v.  Fulton,  34  Md.  128;  6 
Am.  Rep.  314. 

»  Price  V.  Whitely,  50  Mo.  439. 

**  McGregor  v.  Gregory,  11  Mees.  & 


W.  287;  O'Brien  v.  Clement,  10  Mees. 
&  W.  166;  Barnett  v.  Allen,  1  Fust, 
&  F.  125. 

"  Id. 

'■*  Robertson  v.  Bennett,  44  N.  Y, 
Sup.  Ct.  66. 

1*  Greville  v.  Chapman,  5  Q.  B.  731. 

'*  Boogher  v.  Knapp,  8  Mo.  App. 
591;  76  Mo.  457. 

^*  Leyman  v.  Latimer,  L.  K.  3  Ex, 
Div.  15,  3Z-2. 

"  Hakewell  v.  Ingram,  2  C.  L.  Rep, 
1397. 

"  Bruton  «.  Downes,  1  Feat.  &  F,tiuS, 

'*  McCorkle  v.  Binns,  5  Biuii.  bW; 
6  Am.  Dec.  420. 


22C9 


LIBEL. 


§  1267 


dosperato  adventurer;'   that  ho  is  "  a  dishonest  man";' 
that  ho  luul  "  disappeared  with  some  of  his  employer's 
funds,  and  the  police  had  been  notified";^   that  ho  has 
boon  dismissed  for  alleged  thefts,  followed  by  a  comment 
tlifit  the  rascal  ought  to  feel  thankful  to  get  off  so  cheaply;* 
that  ho  put  in  a  distress  in  order  to  help  his  insolvent 
leiiaiit  to  defraud  his  creditors;'  that  he  is  a  drunkard,  a 
cuckold,  and  a  tory;"  that  ho  drove  ovor  a  lady  and  killed 
her,  and  yet  attended  a  public  ball  that  very  evening;' 
that  he  is  a  felon  editor;*  that  he  is  "'a  frozen  snako";' 
that  ho  is  a  skunk;*"  that  he  (a  general  railroad  passenger 
agent)  had  grown  rich  by  making  local  ticket  agents  di- 
vide their  commissions  with  him;"  that  the  grand  jury 
have  found  a  true  bill  against  him  for  a  crime;  ^^  that  he 
has  committed  adultery,  and  that  the  case  seems  from  the 
current  report  to  be  one  of  rape;  "  that  he  is  a  hypocrite, 
and  that   under  the   cloak   of    hypocrisy   he   oppresses 
widows    and    orphans;"  that    he  grossly    insulted    two 
ladies;*'  that  he  is  "at  the  head  of  a  gang  of  swindlers," 
that  he  is  "  a  common  informer,  and  has  been  guilty  of 
deceiving  and  defrauding  divers  persons  with  whom  he 
had  dealings";"  that  he  is  "  a  hypocrite  "; "  that  he  is 


'  Wakelcy  V.  Healey,  7  Com.  B.  691, 

^Austin  V,  Culpepper,  Skin.  124;  2 
Show.  314. 

^  Jkllory  V.  Pioneer-Press  Co.,  34 
Minn.  5-21. 

'  Dwycr  v.  Fireman's  Journal  Co., 
11  D;ily,  248;  Ryer  v.  Fireman's 
Jonrnal  Co.,  11  Daly,  251. 

'  Haire  r.  Wilson,  9  Barn.  &  C.  643; 
4  Muoily  &  R.  G05. 

'"I  never  yet  saw  the  man  who 
likeJ  to  be  considered  a  sot  or  drunk- 
ard. Noah,  the  first  drunken  man, 
became  thereby  an  object  of  ridicule 
to  his  own  son.  It  was  the  third 
part  of  the  then  male  world  that 
manifested  this  mockery  for  this 
habit,   and  the  other  two  thirds  did 

but  conceal  it But  this  paper 

(!i'l  not  stop  with  imputing  excessive 
dubauohery  to  old  man  Thompson;  it 
alleges  further  that  he  was  decoyed 
into  his  cups  for  the  purpose  of  being 


made  a  cuckold.  If  this  charge 
would  not  expose  him  to  universal 
scorn  and  contempt,  I  know  not  what 
would":  Giles  V.  State,  G  (>a.  276. 

'  Churchill  v.  Hunt,  1  Chit.  480;  2 
Barn.  &  A.  085. 

*  Leynian  v.  Latimer,  L.  11.  3  Ex. 
Div.  15,  352. 

»  Hoare  v.  Silverlock,  12  Q.  B.  624; 
17  L.  J.  Q.  B.  300;  12  Jur.  01)5. 

"  Massuere  v.  Dickens,  70  Wis.  83; 
Pledger  v.  State,  77  Ga.  242. 

*'  Shattuc  V.  McArthur,  25  Fed. 
Rep.  133;  29  Fed.  Rep.  1.10. 

■^  Harvey  v.  French,  1  Cromp.  &  M. 
11. 

"Lowe  V.  Herald  Co.,  Utah,  1889. 

>*  Jones  V.Greeley,  Fla.,  18S9. 

»»  Clement  v.  Chivis,  9  Barn.  &  C.  172. 

'^J'Anson  v.  Stuart,  1  Term  Rep. 
748;  2  Smith's  Lead.  Cas.,  6th  ed.,  57. 

''  Thorley  v.  Lord  Kerry,  4  Taunt. 
355;  3  Camp.  214,  note. 


§  12G7 


SLANDER   AND   LIBEL. 


2270 


"au  impostor"; '  that  ho  is  insane;'  that  ho  is  insolvent, 
and  cannot  j)ay  his  dobts;"  that  ho  is '•  an  infoiiuil  vil. 
hiin  ";*  that  ho  is  guilty  of  "  ingratitude  ";*  that  ho  is  an 
itchy  old  toad;"  or  is  a  nicro  man  of  straw;''  that  in  jiis 
capacity  of  a  juror  ho  agreed  with  another  juror  to  stuko 
tho  decision  of  the  amount  of  damages  to  he  given  in  u 
cause  then  under  their  consideration  upon  a  ganio  of 
draughts;*  that  ho  is  a  miserable  fellow;  that  it  is  iuipos. 
eible  for  a  newspaper  article  to  injure  him  to  the  extent 
of  six  cents;  that  tho  community  could  hardly  dcspi.schiui 
"worse  than  they  do  now;'  that  he  was  "once  in  difUciil- 
ties,"  though  now  out  of  them;"  that  ho  has  committed 
perjury;  "  that  ho  had  been  paid  five  thousand  dollars  iu 
cash  for  j^rocuring  the  appointment  of  an  inspector  of 
pork  in  tho  city  of  New  York  by  the  governor,  and  that 
largo  sums  had  been  paid  to  him  for  other  lucrntivo 
offices;"  that  "  B.  would  put  his  name  to  anything  tluit 
T.  would  request  him  to  sign  that  would  prejudice  D.'s 
character";"  that  a  prostitute  is  under  his  protection  and 
patronage;'*  that  he  is  "a  rogue  and  a  rascal "; "  that  "I 
look  upon  him  as  a  rascal,  and  have  watched  him  for 
many  years  ";*"  that  his  house  had  been  searched  under 
legal  process  for  stolen  goods  supposed  to  be  secreted 
therein;*^  that  there  are  "suits  pending  against  him  to 
the  effect  that  he  has  put  himself  in  unlawful  relations 
with  the  wives  of  other  men  ";"  that  he  is  a  swine;*"  that 


'  Cooke  i\  Hughes,  Ryan  &  M.  112; 
Campbell  ?'.  Spottiswoode,  3  Best  &  S. 
7C9;  11  Week.  Rep.  509;  8  L.  T.  201. 

■^  Soutliwick  I'.  Stevens,  10  Johns. 
443. 

3  Met.  0.  Co.  V.  Hawkins,  4  Hurl. 
&  N.  146. 

*  Boll  P.  Stone,  1  Bos.  &  P.  331. 
»  Cox  V.  Loc,  L.  R.  4  Ex.  284. 

«  Villers  v.  Monsley,  2  Wils.  403. 
'  Eaton  V.  Johns,  1  DowL,  N.  S., 
602. 

*  Commonwealth  v.  Wright,  1  Cush. 
46. 

*  Brown  v.  Remington,  7  Wis.  462. 
"  Cox  V.  Lee,  L.  R.  4  Ex.  284. 


"  Slile  V.  Nokes,  7  East,  403;  Hill- 
house  V.  Dunning,  0  Ct)An.  .3'.)];  Miil- 
lerich  v.  Mertz,  19  La.  Ann.  194; 
Haws  V.  Stanford,  4  Sneed,  5l.'(). 

1^  Weed  V.  Foster,  11  Barb.  203. 

>*  Duncan  v.  Brown,  15  B.  Mon. 
186. 

'*  More  V.  Bennett,  48  N.  Y.  472. 

'^  Per  Gould  J.,  in  Villera  r.  Mons- 
ley,  2  Wils.  403. 

'*  Williams  v.  Karnes,  4  Humph.  9. 

>7  State  V.  Smily,  37  Ohio  St.  'M;  41 
Am.  Rep.  487. 

18  Broad  V.  Deuster,  8  Biss.  2G5. 

»»  Solverson  v.  Peterson,  64  Wis.  198) 
54  Am.  Rep.  C07. 


2271 


LIBEL. 


§  12G7 


ahoMeWQS  stolon,  and  "tho  thief  is  believed  to  bo  one 
S. of  Bollo  Pluino";'  thut  "ho  is  thought  no  more  of  t..an 
a  liorsu-thief  und  a  countcrfoiter  ";-  that  ho  is  a  "  truck- 
jiiublur '';"'  that  ho  has  sued  his  mother-in-law;*  that  ho, 
a  t'liurch  nicinbor,  disturbs  the  i)oaco  of  the  church  by 
circulating  false  statements  about  the  pastor,  and  cen- 
suring him  therefor;*  that  he  voted  twice  on  the  same 
ballot  for  the  election  of  state  officers;"  that  ho  is  unfit 
to  bo  trusted  with  money/ 

And  it  is  libelous  to  say  of  a  woman  that  her  husband 
is  petitioning  for  a  divorce  from  her;*  that  she  is  insane, 
or  that  her  mind  is  affected;"  that  she  is  illegitimate;" 
thut  she  has  her  photograph  taken  incessantly,  morning, 
noon,  and  night,  and  receives  a  commission  on  the  sale  of 
such  photographs;"  that  she,  defendant's  sister,  unneces- 
sarily made  him  a  party  to  a  chancery  suit,  adding,  "  it 
is  a  pleasure  to  her  to  put  mo  to  all  the  expense  she  can";  '^ 
that  she,  a  lady  applying  for  relief  from  a  charitable  so- 
ciety, is  unworthy,  and  she  spends  all  tho  money  given 
her  by  the  benevolent  in  printing  circulars  filled  with 
abuse  of  the  society's  secretary.'*  Publishing  a  statement 
as  being  voluntarily  given  to  a  newspaper  by  the  plaintiff 
that  her  mother  had  been  bitten  by  a  cat,  and  would  purr 
and  mew  and  get  down  on  the  floor  to^catch  rats  like  a 
cat;  and  would  hate  the  sight  of  water,  but  that  she  had 
been  cured  by  a  certain  medicine  sold  by  tho  defendant, 
called  "  S.  S.  S.,"  is  a  libelous  publication  of  such  per- 


SOQ. 


14 


Holster,    13  Minn. 


>  Simmons 
249. 

^  Nelson  v.  Musgrave,  10  Mo.  648. 

'  Homer  v.  Taunton,  5  Hurl.  &  N. 
661. 

♦  Cox  V.  Cooper,  12  Week.  Rep.  75. 

"  Over  V.  Hildebrand,  92  Ind.  19. 

« Walker  v.  Winn,  8  Mass.  248. 

'  Cheese  v.  Scales,  10  Mees.  &  W. 
488. 

^  R.  V.  Rosenberg,  Odgers  on  Libel 
and  Slander,  24. 


•  Morgan  v.  Lingen,  8  L.  T.,  N.  S., 
800. 

">  Shelby  v.  Sun  Printing  Co.,  38 
Hun,  474. 

"  R.  V.  Rosenberg,  Odgers  on  Libel 
and  Slander,  23. 

'■•'  Fray  v.  Fray,  17  Com.  B.,  N.  S., 
603;  34  L.  J.  C.  P.  45. 

"»  Hoare  v.  Silverlock,  12  Q.  B.  624; 
17  L.  J.  Q.  B.  306;  12  Jur.  695. 

'*  Stewart  v.  Swift  Specific  Co.,  76 
Oa.  280;  2  Am.  St.  Rep.  40. 


§1267 


SLANDER  AND  LIBEL. 


2272 


Illustrations.  —  "  Digby  has  had  a  tolerable  run  of  luck. 
He  keeps  a  well-spread  sideboard,  but  I  always  consider  mysolf 
in  a  family  hotel  when  my  legs  are  under  his  table,  for  the  hill 
is  sure  to  come  in  sooner  or  later,  though  I  rarely  dabble  in  the 
mysteries  of  ecart^  or  any  other  game.  The  fellow  is  as  deep 
as  Crockford,  and  as  knowing  as  the  Marquis.  I  do  dislike  this 
leg-al  profession."  Held,  libelous:  Digby  v.  Thompson,  4  Barn. 
&  Adol.  821;  1  Nev.  &  M.  485.  "  Hurricane  Vote.  —  Again  we 
have  to  chronicle  most  atrocious  corruption,  intimidation,  and 
fraud  in  the  Hurricane  Island  vote,  for  which  Davis  Tillson  is, 
without  doubt,  responsible,  as  he  was  last  year."  Held,  action- 
able: Tillson  v.  Bobbins,  68  Me.  295;  28  Am.  Rep.  50.  A  news- 
paper published  an  account  of  the  suicide  of  a  man,  falsely 
charging,  in  effect,  that  it  was  induced  by  the  exactions  of  his 
wife,  and  by  her  fraudulent  conduct  in  taking  wages  for  her  son 
which  he  had  not  earned.  Held,  libelous:  Bradley  v.  Cramer, 
59  Wis.  309;  48  Am.  Rep.  511.  "To  W.  L.  T.:  You  are  herohy 
notified  that  I  have  made  application  for  a  homestead,  and  the 
same  will  come  on  for  hearing  at  the  ordinary's  office  December 
15,  1876.  L.  K.  W.  N.  B.  Take  notice,  merchants  and  com- 
munity generally,  the  thieves  [meaning  the  plaintiff]  are  re- 
fusing to  pay  for  rations.  W,  L.  T."  Held,  libelous:  Tillman 
V.  Willis,  61  Ga.  433.  A  public  officer  published,  in  a  report  of 
an  official  investigation  into  his  conduct,  the  following  com 
ments  upon  the  testimony  of  a  witness  before  the  commis- 
sioners of  inquiry:  "  I  am  extremely  loath  to  impute  to  the 
witness  or  his  partner  improper  motives  in  regard  to  the  false 
accusations  against  me;  yet  I  cannot  refrain  from  the  remark, 
that  if  their  motives  have  not  been  unworthy  of  honest  men, 
their  conduct,  in  furnishing  materials  to  feed  the  flame  of  cal- 
umny, has  been  such  as  to  merit  the  reprobation  of  every  man 
having  a  particle  of  virtue  or  honor.  They  have  both  much  to 
repent  of  for  the  groundless  and  base  insinuations  they  liave 
propagated  against  me."  Ifeici,  libelous:  Clarkv.Binney,2V'\(k. 
113.  The  editors  of  a  newspaper,  speaking  of  a  stcamhoat 
agent,  called  him  an  impertinent  person,  and  charged  him  with 
withholding  newspapers  which  had  been  intrusted  to  him  for 
their  paper,  and  warned  their  friends  against  sending  thorn  any 
more  favors  by  him.  Held,  a  libel:  Keemle  v.  Sass,  12  Mo.  499. 
"  '  Our  army  swore  terribly  in  Flanders,'  said  Uncle  Toby,  and  if 
Toby  were  Lere  now,  he  might  say  the  same  of  some  modern 
swearers;  the  man  [meaning  the  witness]  i3  no  slouch  at  swear- 
ing to  an  old  story."  Held,  libelous:  Steele  v.  Southwick,  9  Jolvns. 
214.  A  newspaper  article  concerning  the  chairman  of  a  politi- 
cal county  committee,  not  a  candidate  for  office,  described  hira 
as  an  impudent  imposter;  charged  him  with  writing  an  address 
for  money  out  of  a  corruption  fund;  alleged  that  he  was  the 


2273 


LIBEL. 


1267 


un  of  luclc. 
ider  mysolf 
,  for  the  ))ill 
ibblo  in  the 
is  as  deep 
1  dislike  this 
ion,  4  Barn. 
—  Again  we 
lidatioii,  and 
is  Tillson  is, 
Held,  action- 
30.     A  news- 
man, falsely 
ctions  o"  bis 
js  for  her  son 
y  V.  Cramer, 
)U  are  hereby 
tead,  and  the 
ice  December 
nts  and  com- 
ntiff]  are  r<v 
oub:    Tillman 
in  a  report  of 
)11  owing  coru 
ithe   commis- 
mpute  to  the 
to  the  false 
the  remark, 
honest  men, 
lame  of  cal- 
of  every  man 
30th  much  to 
ms  they  have 


rc'noa;iilz('fl  champion  and  professional  defender  of  prostitutes 
anil  thi'  lowest  criminals,  and  that  he  followed  liis  profession 
solely  to  make  money,  and  moulded  his  opinions  according  to 
liis  ciient's  ability  to  pay.     Held,  libelous:    Barr  v.  Munrr,  87 
l';i.  Si.   '585;  .'>0  Am.  Rep.  367.     A  newspaper,  after  alluding 
to  rertai"  outrages  perpetrated  by  "  ruffians,"  proceeded  to  state 
that  ))laintiff.  "a  young  man  on  the  Washington  train,  who  is 
,;ii<ri;4i'd  in  selling  papers,  and  who  takes  every  occasion  to  in- 
sult Republican  passengers,  appears  to  have  been  in  collusion 
with  the  ruffians.     On  approaching  the  city  he  went  around  to 
t;ik(!  a  vote  of  the  passengers,  the  object  being  evidently  to  spot 
the  Republicans,  that  the  assailants  might  know  who  were  their 
friends  and  who  their  opponents."  Held,  libelous:  Snyder  x.  Ful- 
ton, .'!4  ]\Id.  128;  6  Am.  Rep.  314.     A  communication  concerning 
a  discharged   superintendent  of  defendant's   factory  charged 
embezzlement,  unfitness  for  the  position,  extravagance,  and  im- 
practicability. Held,  libelous:  Manner  v.  Simpson,  13  Daly,  156. 
Apuhlieation  charged  plaintiff,  as  agent  of  certain  fruit-growers^ 
with  corruptly  failing  properly  to  exhibit  their  fruit  at  a  fair, 
and  entering  it  as  his  own.     Held,  libelous:  Bettncr  v.  Holt,  70 
Cal.  270.  A  letter  fro;n  A  to  B  about  C  said:  "  I  was  unfortunate 
enougli  to  have  him  in  my  employ  at  one  time  as  a  book-keeper. 
He  is  a  liar.     I  would  not  believe  him  under  oath."  Held,  libel- 
ous ill  each  of  its  three  sentences:  Hake  v.  Bramcs,  95  Ind.  161. 
Defendant   caused  to  be   circulated    printed  handbills  which 
charged  plaintiff,  a  dressmaker,  with  retaining  material  fur- 
nished her  to  be  made  into  a  dress  for  defendant,  and  imputed 
toiler  the  crime  of  larceny.    Held,  libelous:  Bowcv.  Rogers,  50 
Wis.  oOS.     In   a   newspaper  article  describing  the  means  by 
which  the  stock  of  a  worthless  silver  mine  was  by  a  fraudulent 
scheme  sold  for  a  largo  sum,  the  plaintiff  was  stated  to  liave 
been  employed  to  prepare  the    .ine  by  plastering  and  ingraft- 
in;;  silver  ore  on  the  limestone  rock,  while  armed  men  guarded 
the  entrance  to  the  mine,  and  it  was  also  stated  that  the  plain- 
tilT  was  an  expert  in  preparing  a  mine  in  this  way,  and  that 
his  services  in  this  regard  were  as  valuable  as  those  of  the  per- 
son tiirough  whose  influence  and  standing  the  stock  of  the  com- 
pany was  sold.     Held,  libelous:   Williams  v.  Godkin,  5  Daly, 
4'.)0,    A.  published  the  following  in  a  newspaper:  "Whereas  R. 
did  ni;ike  representations  to  me  that  it  would  be  impossible  for 
my  si;-:ter  B.  to  secure  the  position  of  teacher"  of  a  certain 
fioliool,  when  he  then  knew  that  a  contract  between  her  and  the 
trustees  to  teach  the  scliool  had  been  made,  "  and  whereas  tho 
disappointment  occasioned  by  this   misrepresentation  of  his  " 
aggravated  "  my"  sister's  illness,  "and  further  considering  the 
fact  that  his  sister  had  applied  for  the  same  school,  I  regard 
I  this  conduct  in  him  as  uncalled  iix,  ungentliemanly,  and  dei,est- 

143 


§  12G8 


SLANDER  AND   LIBEL. 


2274 


able,  as  liis  statement  was  fallacious.  [Signed]  A."  Held,  to 
charge  the  uttoraneo  of  a  falsehood,  and  to  be  libelous  per  sc: 
RUey  V.  Lee,  Ky.  1889.  The  defendant  published  in  a  paper  a 
wriung  i)urporting  to  be  a  letter  from  King  Kalakaua,  which. 
with  the  editor's  comments,  was  as  follows:  "Never  go  into  a 
lawsuit  witli  A.  (the  plaintiff)  so  long  as  he  may  be  the  owner 
of  those  books  that  beat  S.,  J.,  C,  and  whoever  they  might  be 
brought  up  against,  for  A.  is  chiefest  among  ten  thousand,  and 
the  one  altogether  lovely  on  the  swear.  We  begin  to  behove 
that  old  Kalakaua  is  no  bug-cater,  if  he  is  a  man-eater,  for  we 
mot  A.  under  the  fish  last  week  in  a  suit  on  a  plain  pronii^sorv 
note  for  five  hundred  and  eighty-five  dollars,  and  he  came  very 
near  swearing  us  into  his  debt.  If  Beecher  is  really  desirous 
of  laying  out  Theodore  Tilton  in  his  suit  now  in  progress  in 
New  York  City,  let  him  send  for  our  friend  A."  Held,  hbel- 
ous:  Gdhe  v.  McGinnis,  68  Ind.  538.  A  publication  in  a  news- 
paper with  the  heading,  "C.'s  clutch  on  his  friends,  which 
caused  them  to  trust  him,  and  get  left,"  states,  in  substance, 
that  ho  occupied  the  position  of  shipping  clerk  for  a  mercantile 
firm,  "and  has  left  the  city  under  a  cloud";  that  the  book- 
keeper of  the  firm  presented  a  bill  to  one  of  its  customers, 
wlio  produced  C.'s  receipt  for  it;  that  C.  was  thereupon  "paid 
tip  and  discharged";  that  he  then  "went  to  his  friends  and 
borrowed  what  money  he  could,  went  to  his  boarding-lioiise, 
and  took  his  valise  and  clothes  away,  leaving  a  board  hill  un- 
paid"; that  "  no  one  knows  where  he  went";  that  "he  was  a 
good  talker,  and  caught  a  number  of  his  friends  who  had  con- 
fidence in  him,"  and  that  "  he  told  marvelous  stories  of  his 
wealthy  uncle  who  lived  in  Louisiana."  Held,  per  se  libelous 
and  actionable,  without  an  averment  of  special  damages:  Iron 
Age  Publishing  Co.  v.  Crudup,  85  Ala.  519. 

§  1268.  Aliter — Not  Libelous. — Mere  general  abuse  and 
scurrility,  however  ill-natured  and  vexatious,  is  not  action- 
able, whether  written  or  spoken,  if  it  does  not  convey  a 
degrading  charge  or  imputation.*  Thus  it  had  been  held 
not  libelous  to  write  of  one  that  he  endeavored  to  suppress 
sedition  and  discourage  conspiracy  in  Ireland;^  that  lie 
is  a  "  Man  Friday";*  that  "  H.  &  S.  hereby  give  notice 
that  they  will  not  receive  in  payment  checks  drawn  on 
any  of  the    branches   of  the  C.  C.  Bank";*     that  the 

'  Rico  V.  Simmona,  2  Harr.  (Del.)        *  Forbes    v.    King,    1    Uowl.  CIS 

417;  .31  Ain.  Dec.  766.  Hoaro  v.  Silverlock,  12  Q.  B.  (i'2C, 

"  Mawe  V.  Pigott,  4  Ir.   C.  L.   Rep.         ♦  Capital  etc.  Bauk  v.  Houty,  L,  B.  I 

C4.  5  0.  P.  Div.  514. 


2274 


2275 


LIBEL. 


1203 


» 


Held,  to 
iclous  per  sc: 
in  a  paper  a 
kaua,  which, 
■cr  go  inio  a 
be  the  owner 
icy  might  be 
housand, and 
rill  to  believe 
n-eater,  for  we 
,in  promissory 
he  came  very 
really  desirous 
in  progress  in 
"  Held,  libel- 
tion  in  a  news- 
friends,  wbicli 
J,  in  substance, 
or  a  mercantile 
that  the  book- 
f  its  customers, 
iereui)on  "paid 
his  friends  and 
boarding-house, 
a  board  hill  un- 
that  "  he  was  a 
is  who  had  con-  ] 
as  stories  of  his 
:,  per  se  libelous 
'  damages;  Iron 

neral  al^use  and 
IS,  is  not  action- 
es  not  convey  a 
had  been  held 
ored  to  suppress 
,landr  thatk 
■eby  give  notice 
hecks  drawn  on 
*     that  the' 


.  >». 


plaintiff  ''figured  prominently  in  some  of  the  squatter 
riots";'  that  he  pleaded  the  statute  of  limitation  in 
defense  of  an  action  at  law;''  that  he  "treated"  vot- 
ers;^ that  "  we  are  requested  to  state  that  the  hoD- 
ornry  secretary  of  the  Tichborne  Defense  Fund  is  not 
and  never  was  a  captain  of  the  Royal  Artillery,  as  he  has 
been  erroneously  described";*  "Society  of  Guardians  for 
tlie  Protection  of  Trade  against  Swindlers  and  Sharpprs. 
I  am  directed  to  inform  you  that  the  persons  using  the 
firm  of  Goldstein  &  Co.  are  reported  to  this  society  as  im- 
proper to  be  proposed  to  be  balloted  for  as  members 
thereof";*  or  to  say  of  a  merchant,  he  has  refused  to  con- 
tribute his  mite  with  his  fellow-merchants  to  water  the 
street  in  front  of  his  store." 

Illustrations.  —  Defendants  published  and  posted  in  a  public 
club-room  the  following  notice:  "  The  lie  v.  J.  Robinson  and 
Mr.  J.  R.,  inhabitants  of  this  town,  not  being  persons  that  the 
proprietors  and  annual  subscribers  think  it  proper  to  associate 
with,  are  excluded  from  this  room.    Held,  no  libel:  Robinson  v. 
Jrrmyn,  1  Price,  11.     M.  had  been  master  at  the  Walsall  Science 
and  Art  Institute.     His  engagement  there  ceased  in  Juno,  1874, 
and  he  then  started  and  became  master  of  another  school,  which 
was  called  the  Walsall  Government  School  of  Art,  and  was 
opened  in  August.     In  September  the  following  advertisement 
appeared  in  a  newspaper,  signed  by  the  defendants  as  chair- 
man, treasurer,  and    secretnry  of  the    institute  respectively: 
•  Walsall  Science  and  Art  Institute.     The  public  are  informed 
that  Mr.  Mulligan's  connection  with  the  institute  has  ceased, 
and  that  he  is  not  authorized  to  receive  subscriptions  on  its 
behalf."  Held,  no  hbel:  Mulligan  v.  Cole,  L.  R.  10  Q.  B.  549;  44 
L.J.  Q.  B.  153;  33  L.  T.  12.     E.  published  of  a  saloon-keeper: 
"To  fret  rid  of  a  just  claim  in  court,  he  set  up  as  a  defense  the 
existing  prohibitory  liquor  law.     We  feel  it  our  duty  to  make 
such  conduct  publicly  known,  in  order  to  caution  beer-brewers 
and  liquor  dealers."     Held,  not  libelous:  Homer  v.  Engclhardt, 


\   Dowl.  6:2; 
ockT  12  Q.  »■  % 


Ling, 


'  Clarke  v.  Fitch,  41  Cal.  472. 

•  Bci-.uett  V.  Williamson,  4  Sand.  CO. 
'  tiLiliuau   V.    Shanklin,    60    Ind. 

*  Hunt  i\  Goodlake,  43  L.  J.  Com. 
I'.  a4;  -J!)  L.  T.  472. 

'Thu   judgment    would  have  been 
otkei'wide  had  there   beea  an   aver- 


ment that  it  was  the  custom  of  the 
society  to  designate  swindlers  and 
sharpers  by  the  term  "improper  per- 
sons to  be  members  of  this  .society  "s 
Gold.steia  i\  Foss,  6  Barn.  &  C.  154; 
4Bing.  4S9;  2  Car.  &  P.  252;  2  Youuge 
&  J.  14li;  1  Moore  &  P.  402. 
8  People  V.  Jerome,  1  Mich.  142, 


1269 


SLAXDER  AND  LIBEL. 


2276 


117  Mass.  539.  The  editor  of  a  newspaper  owed  the  plaintiff 
money  upon  an  award  of  arbitrators,  in  speaking  of  which 
and  of  the  plaintiff  in  an  article  in  his  paper  he  said:  "  The 
money  will  be  forthcoming  on  the  last  day  allowed  by  the 
award;  but  we  arc  not  disposed  to  allow  him  to  put  it  into  Wall 
Street  for  shaving  purpose  before  that  period."  Held,  not  libel- 
ous: Stone  V.  Cooper,  2  Denio,  293.  A  banker  remitting  the 
proceeds  of  a  note  sent  to  him  for  collection  appended  to  his 
letter  the  words,  "  Confidential.  Had  to  hold  over  for  a  few 
days  for  the  accommodation  of  L.  &  II.,"  who  were  the  makers. 
Held,  not  necessarily  libelous,  and  that  their  interpretation  was 
a  matter  for  the  jury:  Lewis  v.  Chapman,  16  N.  Y.  369. 

§  1269.  Libels  on  Holders  of  OfSces.  —  To  impute  to 
any  one  holding  an  office  that  he  is  incompetent  for  tlie 
position,  or  that  he  is  or  has  been  guilty  of  improper  con- 
duct  in  the  office,  or  is  actuated  by  wicked,  corrupt,  or 
seliish  motives,  is  libelous.  In  the  case  of  libel  on  an 
officer,  it  is  libelous  to  impute  past  misconduct  while  in 
the  office,  and  it  is  not  essential  that  the  plaintiff  should 
still  hold  the  office  or  exercise  the  profession.*  Thus  it  is 
li])clous  to  charge  that  a  clerk  of  court  is  guilty  of  corrup. 
tion  and  misapplication  of  money;''  that  an  officer  wiicn 
in  office  advocated  high  rates,  and  when  out  of  office  low 
rates,  and  was  not  to  be  trusted;'  that  a  financial  state- 
mont  of  a  county  made  by  the  county  auditor  was  ftilso,  in 
that  it  omitted  an  item  of  fifteen  thousand  dollars,  and 
that  it  was  suspected  to  be  otherwise  false;  that  it  was 
sworn  to,  and  that  an  officer  who  would  swear  to  one  lie 
would  swear  to  another;*  naming  the  plaintiff  and  other 
senators,  and  stating:  "That  money  has  been  used  to  otfect 


'  Parmiter  v.  CouplanJ,  6  Mees.  & 
\V.  105;  Boj'dell  v.  Jones,  4  Mees.  & 
W.  44(j;  Goodburiie  v.  Bowman,  9 
Bing.  532;  VVarman  v.  Hiae,  1  Jur. 
8:20;  Russell  v.  Anthony,  21  Kan.  450; 
30  Am.  Rep.  43U;  Eviston  v.  Cramer, 
47  Wis.  059;  Craiuor  v.  Riggs,  17 
Wend.  209.  A  liter  in  case  nt  oral 
defamatioa:  See  preceding  chapter. 
To  print  of  a  man  that  he,  while  a 
lOfBmber  of  a  convention,  "openly 
avowed  the-opiaion  that  goverameut 


had  no  more  right  to  provide  by  hv 
for  the  support  of  the  worsliip  of  the 
Supreme  Being  than  for  the  sujipurt 
of  the  worship  of  the  Devil "  is  hbul- 
ous:  Stow  V.  Converse,  3  Couu.  &, 
8  Am.  Dec.  189. 

•^Blagg  V.  Sturt,  10  Q.  B.  SO!); 
May  V.  Brown,  3  Barn.  &  (-'.  113; 
Warman  v.  Hiue,  1  Jar.  820. 

^  Cheese  v.  Scales,  10  Mees.  &  W. 
488. 

*  Prosaer  v.  Callis,  117  Ind.  105. 


2277 


LIBEL. 


§1269 


n.*    Thus  it  is 


some  of  these  railroad  laws,  we  know;  we  have  names 
and  amounts,  and  dates,  so  that  there  can  be  no  mis-' 
tako";^   that  a  state  senator  voted  against  his  party,  and 
received  from  the  other  party,  in  consideration  of  his  vote 
a  profitable  contract; »  that  a  judge  is  corrupt; «   that  a 
judge  IS  destitute  of  the  capacity  and  attainments  necessary 
for  Ins  station,  or  that  he  openly  abandoned  the  common 
principles  of  truth,  or  that  he  sold  directly  or  indirectly 
the  appointment  of  clerk;*   that "  never  before  have  we 
soeii  the  judges  of  the  supreme  court,  singly  or  en  masse, 
moved  from  that  becoming  propriety  so  indispensable  to 
secure  the  respect  of  the  people,  and,  throwing  aside  the 
ermine,  rush  into  the  mad  contest  of  politics  under  the 
excitement  of  drums  and  flags,  and  render  themselves 
iiiiht  to  hold  the  balance  ox' justice";  and  that  "whenever 
an  occasion  may  offer  to  serve  his  fellow-partisans,  such 
a  judge  will  yield  to  temptation,  and  the  wavering  balance 
will  siuike  ';"  that  a  judge  on  the  bench  is  in  partnership 
with  his  son,  a  lawyer,  and  in  that  capacity  receives  com- 
pensation from  parties  to  suits  in  which  the  judge  sits,  is 
hbelous;    words  tending  to  impeach  the  honesty  and  in- 
tegrity of  jurors  in  their  office;^  that  a  public  officer  was 
m  a  beastly  state  of  intoxication  when  in  the  discharge 
ot  his  duties,  and  an  object  of  loathing  and  disgust,  blind 
with  passion  and  rum;«   that  a  court  commissioner  is  "a 
fit  tool  and  toady  of  others,  and  whatever  he  might  do  in 
the  future,  the  past  would  warrant  the  depriving  him  of 
Ins  office "; «    that   an   officer   authorized  to  administer 
oaths  affixed  a  jurat  to  an  affidavit,  and  certified  that  the 
person  who  signed  it  was  duly  sworn,  when  in  fact  he  was 
not  sworn;  ^0  that  a  commissioner  of  bankruptcy  was  a 


\\ilsoav.  Noonan,  23  Wis.  105 
Aog  ey  V.  Farrow,  60  Md.  158. 
Kulibins    V.    Treadway.    2    J    J 
I  Marsh.  5-tO;  19  Am.  Dec.  152.       " 

'Kol.buia    V,    Treadway,    2    J    J 
I  Marsh.  540;  19  Am.  Dec.152 
^Matter  of  Moore,  63  N.  C.  397. 
Koyce  V.  Maloney,  58  Vt.  437. 


'  Byers  v.  Martin,  2  Col.  605;  25 
Am.  Rep.  755. 

8  King  V.  Root,  4  Wend.  113;  21 
Am.  Dec.  102. 

.,fl'f^'^^,'"S  ^-  Carpenter,  9  Wis.  540: 
76  Am.  Dec.  281. 

"TurrUi    v.  Dolloway,  17    WenO. 


§12G9 


SLANDER  AND   LIBEL. 


2278 


misanthropist,  a  ^^olent  partisan,  stripping  the  unfor- 
tunate debtors  of  every  cent,  and  then  depriving  thcni  of 
the  benefit  of  the  act;'  that  an  overseer  of  the  poor  is 
guilty  of  oppressive  conduct  towards  the  paupers;-   (hat 
trustees  of  a  charity  have  misappropriated  funds;"*  tliat  a 
county  school  superintendent  had,  for  a  money  consider- 
ation,  by  the  use  of  his  influence,  induced  the  board  of 
education  to  change  the  school-books;*  that  an  ex-mayor 
and  a  justice  of  the  peace,  during  his  mayoralty,  was 
guilty  of  partiality  and  corruption,  and  displayed  iiruo- 
rance  of  his  duties;^  that  a  person  while  formerly  holding 
the  office  of  sealer  of  weights  and  measures  and  inspector 
of  scales  for  a  certain  city  "  tampered  with  "  or  "  doe- 
tored"  such  weights,  measures,  and  scales,  for  the  purpose 
of  increasing  the  fees  of  his  office;*   that  a  certificated 
master  mariner  was  drunk  and  neglected  his  duties;"  that 
a  member  of  a  certain  political  party,  at  one  of  its  nomi. 
nating  conventions,  offered  a  certain  resolution  under  the 
influence  of  a  bribe.^    It  is  not  libelous  to  allege  of  a  hus- 
band in  charge  of  a  public  office  that  his  wife  was  given 
work  in  the  office,  and  paid  for  it  in  her  maiden  name." 

iLLrsTRATTONS.  — The  defendant  published  in  a  newspjipfr 
called  the  Leavenworth  Daily  Times  an  article  concerning  the 
plaintiff",  E.  R.,  which  article  contains,  among  other  things,  the 
following:  "  Who  is  E.  R.,  in  whose  eyes  swindling  is  no  crime? 
He  is  secretary  of  the  bankrupt  Kansas  Insurance  Conipanv, 


*  Riggs  V.  Denniston,  3  Johns.  Cas. 
198;  2  Am.  Dec.  145. 

■^  Wooilard  v.  Dowsing,  2  Man.  &  R. 
74. 

'  Booth  V.  Briscoe,  L.  R.  2  Q.  B.  496. 

^  Hartford  v.  State,  96  lud.  461;  49 
Am.  Rep.  185. 

•'■  Pannitor  v.  Coupland,  6  Mees.  & 
W.  105:  4  Jur.  701. 

*  Eviston  v.  Cramer,  47  Wis.  659. 

"  Coxheadw.  Richards,  2  Com.  B.  569; 
Irwin  V.  Brandwood,  2  Hurl.  &  C.  960. 

«  Hand  v.  Winton,  38  N.  J.  L.  122, 
the  court  saying:  "When  a  citizen 
undertakes  to  exercise  any  of  his  po- 
litical privileges,  it  is  certainly  his 
duty  to  act  upon  public  considerations; 


to  be  influenced  in  such  a  matter  by 

Eecuniary  motives,  though  it  may  not 
e  punishable  in  some  cases  as  a  criiik, 
is  always  disgraceful.  Every  one  wli.i, 
for  a  bribe,  gives  his  vote  or  V\<  in- 
fluence to  a  candidate  for  nnmiiiatioa 
to  a  public  position  does  sucli  act  ia 
secret,  thus  showing,  by  hi.s  axoiilan.e 
of  the  public  gaze,  his  conscioiisncsi 
of  the  unworthy  part  he  is  jilayiiij 
Therefore,  to  print  and  pul)lisli  that  I 
a  man  has  been  guilty  of  tuicli  an  act 
must  necessarily  be  to  hold  him  up  to  | 
the  derision  and  contempt  of  the  coni' 
munity." 

*  Bell  V.  Sun  Printing  etc.  Co.,  4'  | 
N.  Y.  Sup.  Ct.  567;  3  Abb.  N.  C,  lin 


227S 


2279 


LIBEL. 


1270 


g  the  nnfor- 
.ving  them  of 
f  the  poor  is 
aupers;"  that 
unds;''  llmt  a 
mey  coii>=i<l('r- 

the  board  of 
,t  an  ex-mayor 
Qayoralty,  was 
isplayed  icruo- 
rmerly  lioldin;^ 
J  and  inspector 
'ith  "  or  "  doc 
for  the  purpose 
t  a  certificatei.'. 
lis  duties;'  that 
lie  of  its  nomi- 
iition  under  the 
allege  of  a  hii;-- 

wife  was  given 
naiden  name.' 

in  a  newspaper 

,e  concerning  the 

other  thin  [IS.  the 

ing  is  no  crime'' 

urance  Company. 

in  such  a  mutter  by 
es,  though  it  luiiv  not 
some  cases  as  a  crime, 
jeful.    Every  oue  wli", 
es  his  vote  "or  lii^  is- 
didate  for  nonniiation 
itiou  does  such  act  '.a 
iving,  by  hi.s  iivonlaiioe 
aze,  his  couscioiisiitsj 
IV  part  he  is  vlaymj 
rint  and  puhlisli  iU 
guilty  of  audi  an  »'■'' 
be  to  hold  him  up  to  | 
contempt  of  the  coni' 

Printing  etc.  Co..  f 
567;  3  Abb.  N.  C.  lo,.  I 


Loss  than  two  years  ago  ho  was  state  commis?ioner  of  insurance, 
and  certified  under  his  oath  of  ofhce  that  this  bankrupt  concern 
was  a  souiid  and  solvent  insurance  company,  wliilo  he  knew  it 
was  at  that  very  time  liopelessly  hankrupt.  He  was  forced  to 
Icavo  the  office  of  commissioner  of  insurance  because  tlio  Leav- 
enworth Times  exposed  his  oflicial  crookedness,  and  compelled 
him  to  disgorge  eight  thousand  dollars  of  the  state's  money." 
ITnIi^,  actionable:  Russell  v.  Anthony,  21  Kan.  450;  30  Am. 
Rei).  4.']G.  Plaintiff  was  Grand  Worthy  Chief  Templar  in 
a  temperance  organization,  and  also  secretary  of  the  State 
Temperance  Alliance,  and  constantly  engaged  in  the  duties 
comiected  therewith.  Defendants  published  of  him  that  he 
was '•  a  seducer  of  innocent  girls,"  and  instanced  an  attempt 
on  Ins  part  to  debauch  and  ruin  a  young  school-girl  who  was 
at  the  time  a  member  of  his  own  household.  Also,  that  he  was 
"an  arch-hypocrite  and  scoundrel,  who  was  simply  using  his 
talents  for  money-making  purposes,  and  not  through  any  sin- 
ce"ity  in  the  cause  in  which  he  is  laboring."  Held,  that  each 
of  those  charges  was  actionable  i)er  se:  Finch  v.  Vifqunin,  11 
Neb.  280.  A  pamphlet  stated  that  plaintiff  was  a  railroad  con- 
ductor who  was  discharged  for  carelessness.  Held,  that  their 
natural  import  was  that  plaintiff  was  careless  in  his  bu.siness 
and  employment  as  a  conductor,  and  that  he  was  so  careless 
and  unworthy  of  employment  at  the  date  of  publication,  and  if 
it  was  published  falsely  and  maliciouslv,  was  libelous:  Missouri 
Pacific  R.  R.  Co.  V.  Richmond,  Tex.,  1889. 

§  1270.  Libels  on  Professional  Men.  —  To  impute  to  a 
member  of  any  of  the  learned  professions  that  he  docs 
not  possess  the  technical  knowledge  necessary  for  the 
proper  practice  of  such  profession,  or  that  he  has  been  or  is 
guilty  of  professional  misconduct,  is  libelous.^  A  charge 
that  the  plaintifi'  was  supervising  architect  of  a  building, 
and  promised  and  gave  to  the  defendants  work  on  it  for 
a  commission  paid  him  by  them,  is  not  actionable  in 
itself,^  nor  is  it  libelous  to  publish  of  a  professional  man 
"  that  ho  has  removed  his  office  to  his  house  to  save  ex- 
pense." * 

•  See  also  the  preceding  chapter.  individual,  though  reduced  to  writing 

•^  Logg  V.  Dunleavy,  80  Mo.  558;  50  and  maliciously  publisheil,   that  will 

Am.  lit.'!).  512.  sustain    an    action  for  damages.     It 

^Stewart  c.  Minnesota  Tribune  Co.,  must    appear  that  the  plaintiff  has 

Minn.,  1889,  the   court    saying:  "It  sustained  some  special  loss  or  damage, 

is  not  every  false  charge  against  an  following  as  the  necessary  or  natural 


g  1271 


SLANDER   AND  LIBEL. 


22S0 


§1271.  Clcrgfymen.  —  It  is  libelous  to  publish  of  a 
clergyman  tluit  ho  poisoned  foxes  on  an  estate,  and  liarl 
been  liungup  in  effigy  in  consequence  of  such  "dastardly 
behavior";'  that  a  clergyman  came  to  the  performance 
of  divine  service  in  a  towering  passion,  and  that  his 
conduct  is  calculated  to  make  infidels  of  his  congroga. 
lion;''  that  "a  serious  misunderstanding  has  recciUly 
taken  place  amongst  the  independent  dissenters  of  Great 
Marlovv  and  their  pastor,  in  consequence  of  some  personal 
invectives  publicly  thrown  from  the  pulpit  by  the  latter 
against  a  young  lady  of  distinguished  merit  and  spotless 
reputation.  Wo  understand,  however,  that  the  matter  is 
to  be  taken  up  seriously  ";  *  that  a  Protestant  archbishop 


and  iwoximato  consequence  of  the  pub- 
licatiuu,  or  the  nature  of  the  charge 
itself  must  be  such  that  the  court 
can  legally  presume  that  the  party 
has  been  injured  in  his  reputation  or 
business,  or  in  his  social  relations,  or 
has  been  subjected  to  public  scandal, 
scorn,  or  ridicule  in  consequence  of 
the  publication:  Stone  v.  Cooper,  2 
Denio,  2!)9;  Coolcy  on  Torts,  2d  ed,, 
241-24,'};  Townshend  on  Slander  and 
Libel,  121;  Pollock  on  Torts,  207.  As- 
suming that  the  charge  was  maliciously 
made,  it  did  not  import  anything  un- 
lawful, disreputable,  or  unprofessional. 
A  professional  man  has  a  perfect  moral 
and  legal  right  to  change  the  location 
of  his  oliice  to  his  house,  in  his  discre- 
tion, for  any  reason  satisfactory  to 
himself,  whether  to  save  expense  or 
otherwise.  What  ground  ia  there, 
then,  for  the  legal  interference  that  the 
plaintiff  has  been  degraded  and  in- 
jured by  the  publication?  It  is  not 
claimed  that  the  charge  as  published 
would  tend  to  injure  him  because  the 
change  or  the  report  of  a  change  of 
his  oliice  would  diminish  his  profes- 
sional business  in  amount  or  profits, 
and  no  case  is  made  for  special  dam- 
ages: 3  Bla.  Com.  *124;  Terwilliger 
V.  Wands,  17  N.  Y.  60;  72  Am.  Dec. 
428-4:)3.  But  it  is  claimed  that  the 
words  '  to  save  expense '  are,  under 
the  circumstances  set  forth  in  the 
complaint,   susceptible  of  a  defama- 


tory meaning,  such  as  would  be  cal- 
culated to  injure  plaintiff  in  his  pri- 
vate and  professional  character  aud 
standing  in  the  community,  and  oc- 
casion loss  or  damage  in  consequence 
thereof.  But  we  do  not  think  such 
inference  is  warranted,  or  that  tlie  in- 
jury complained  of  could  be  reason- 
ably construed  or  contemplated  as  the 
natural  and  proximate  consequence  of 
the  publication,  giving  the  laiijiuage 
used  its  proper  and  legitimate  inter- 
pretation; and  the  charge  itself  can- 
not be  expanded  or  enlarged  by  sim- 
ple averment:  Donaghuo  v.  Gaffy,  53 
Conn.  51;  Platto  v.  Geilfuss,  47  Wia. 
493;  Homer  i>.  Englehardt,  117  Mass. 
540;  Stone  v.  Cooper,  2  Denio,  297; 
Walker  v.  Tribune  Co.,  29  Fed.  Rep. 
829.  The  allusion  to  the  plaintiff  in 
the  article  complained  of  may  bo  con- 
ceded to  be  impertinent  and  in  bad 
taste,  but  the  law  of  libel,  however 
salutary  as  a  remedy  in  proper  cases, 
cannot  be  invoked  to  redress  every 
breach  of  good  morals  or  good  man- 
ners in  newspaper  publications  re- 
specting individuals. " 

'  R.  V.  Cooper,  8  Q.  B.  533;  15  L. 
J.  Q.  B.  206. 

'^  Walker?;.  Brogden,  19 Com.  B.,N, 
S.,  65;  Gathercole  v.  Miall,  ]5  Mees. 
&  W.  319;  15  L.  J.  Ex.  179.  But 
see  Kelly  v.  Tinling,  L.  R,  1  Q.  B. 
699. 

»  Edwards  v.  Bell,  1  Bing.  403. 


2281 


LIBEL. 


S1272 


Iq.  B.   533;  15  L. 


attcmptofl  to  convert  a  Catholic  priest  by  offers  of  money 
and  of  preferment  in  the  Church  of  England  and  Ireland.* 

§  1272.  Journalists  and  Newspapers.  —  It  is  libelous 
to  impute  to  the  editor  and  proprietor  of  a  newspaper 
that  in  advocating  Christianity  among  the  Chinese  he 
was  an  impostor,  anxious  only  to  put  money  into  his  own 
pocket  by  extending  the  circulation  of  his  paper;  and 
that  lie  had  published  a  fictitious  subscription  list  with 
a  view  to  induce  people  to  contribute;''  to  call  the  editor 
of  a  newspaper  **  a  libelous  journalist";'  to  charge  that 
a  newspaper  "  is  alleged  to  have  been  started  for  the 
purposes  of  plunder  ";"*  to  charge  that  a  newspaper  has  a 
Boparute  page  devoted  to  the  advertisements  of  usurers 
and  ([uack  doctors,  and  that  the  editor  takes  respectable 
advertisements  at  a  cheaper  rate  if  the  advertisers  will 
consent  to  their  appearing  in  that  page;'  to  charge  the 
publisher  of  another  paper  with  being  a  party  to  a  secret 
conclave,  in  which  he  sold  the  support  and  advocacy 
of  his  paper  to  certain  corporations  for  a  sum  of 
money;*  or  that  "the  editor  of  the  Chronicle  has  been 
intoxicated  on  several  occasions, and  that,  too,  after  he  was 
elected  to  the  legislature  as  the  champion  of  prohibi- 
tion.^ It  is  not  libelous  for  one  newspaper  to  call  another 
"  the  most  vulgar,  ignorant,  and  scurrilous  journal  ever 
published  in  Great  Britain";  but  it  is  libelous  to  add, 
"It  is  the  lowest  now  in  circulation;  and  we  submit 
the  fact  to  the  consideration  of  advertisers";  for  that 
affects  the  sale  of  the  paper  and  the  profits  to  be  made 
by  advertising.* 

Illustrations.  —  PlaintiflF,  a  reporter  of  another  newspaper, 
Bued  defendant  for  publishing  an  article  stating  that  he,  having 


'  Arclibishop  of  Tuam  v.  Robeson, 
5Bing.  17;  2  Moore  &  P.  32. 

'■'  Campbell  v.  Spottiswoode,  3  Best 
&S.  7W);  9  Jiir.,  N.  S.,  10G9. 

MVakley  v.  Cooke,  4  Ex.  511. 

*  Hart  V.  Townsend,  67  How.  Pr.  88. 


59. 


*  Russell  V.  Webster,  23  Week.  Rep. 


«  Fitch  V.  De  Young,  66  Cal.  339. 
^  State  V.  Mayberry,  33  Kan.  441. 
*  Heriot  v.  Stuart,  1  Esp.  437. 


81273 


SLANDER  AND  LIBEL. 


2282 


insinuated  himself  into  the  good  graces  of  one  Thomas,  a 
Borgciint  of  police,  learned  from  him  (though  the  fi)rce  had 
been  cautioned  against  giving  news  to  reporters)  his  priviite 
opinion  of  matters  connected  with  the  police  department,  imd 
carried  them  to  headquarters,  causing  the  officer's  suspension. 
The  article  further  said  "that  on  no  other  journal  in  the  city 
[than  plaintilf'sj  could  such  a  thing  have  been  possible,"  utui 
that  "  there  is  not  a  patrolman  on  the  force  who  docs  nut 
sympathize  with  Thomas,  and  who  does  not  condenm  tlie  re- 
porter who  made  public  a  private  conversation."  The  puhlj- 
cation  was  proved  and  not  justified.  Held,  actionable:  Tnjo 
V.  Evening  I^'ewa  Association,  39  Mich.  636, 

§  1273.  Lawyers. — It  is  libelous  to  publish  of  a  lawyer 
"  that  he  edited  the  third  edition  of  a  law-book  which  it 
is  proved  is  full  of  inaccuracies";'  that  his  conduct  in  a 
particular  case  is  to  bo  compared  to  that  of  the  celebratod 
firm  of  Quirk,  Gammon,  and  Snap;''  that  he,  an  attorney,  is 
an  "honest  lawyer"  (ironically);^  that  his  conduct  in  a 
certain  case  was  "shameful";*  that  he  is  a  "shyster";' 
that  ho  is  an  "  imposter "  and  a  "  quack  lawyer  and 
mountebank";®  that  a  firm  of  lawyers  was  guilty  of 
"betraying  and  selling  innocence  in  a  court  of  justice," 
and  with  doing  acts  in  their  profession  which  should 
cause  them  "  to  be  held  up  to  the  world  as  derelict  in 
their  sense  of  honor  and  obligation,"  and  unworthy  of 
"trust  and  confidence";'  that  he  had  three  times  been 
suspended  from  practice  for  extortion;*  that  he  was  guilty 
of  "disgraceful  conduct"  in  having  at  an  election  dis- 
closed  confidential  communications  made  to  him  profes- 
sionally";" that  he  abandoned  his  client's  cause  by  re- 
signing his  office  in  the  midst  of  a  litigation  brought  on 


*  Archbold  v.  Sweet,  1  Moody  &  R, 
162;  5  Car.  &  P.  219. 

'■'  Woodgate  v.  Ridout,  4  Fost.  &  F. 
202. 

*  Boydell  v,  Jones,  4  Mees.  &  W. 
446;  7  L>owl.  210;  1  Horn  &  H.  408; 
R.  V.  Brown,  11  Mod.  86;  Holt,  425; 
Sir  Baptist  Hicks's  Case,  Hob.  215; 
Poph.  139. 

*  Clement  v.  Lewis,  .3  Brod.  &  B.  297. 


'  Gribble  V.  Pioneer  Press  Co.,  34 
Minn.  342. 

« Wakley  v.  Healey.  7  Com,  B, 
591. 

'  Ludwig  V.  Cramer,  53  Wis.  103. 

*  Clarkaon  v,  Lawson,  3  Mooiu  &P. 
605;  4  Moore  &  P.  356;  Blake  r.  Ste- 
vens, 4  Fost.  &  F.  232;  11  L.  T.  543. 

"  Moore  v.  Terrell,  4  Barn.  &  Adol. 
870;  1  Nev.  &  M.  559. 


2282 


2283 


LIBEL. 


§1274 


Thomfis,  a 
3  force  ]);iil 
his  priviito 
rtmoiit,  and 
BUspcMision. 

in  tho  city 
»8Bibit',"  unci 
10  does  not 
en»n  tlio  re- 

Tho  pnl.li- 
•nable:    Tnjo 


L  of  a  liiwyer 
)ok  which  it 
;onduct  in  a 
le  celchvated 
1  attorney,  is 
jonduct  in  a 
"shyster";' 
lawyer   and 
ras   guihy  of 
t  of  justice," 
?hich  should 
3  derelict  in 
unworthy  of 
times  l)oen 
he  was  guilty 
election  (lis- 
3  him  pvofes- 
cause  hy  ve- 
il brought  oil 

ler  Press  Co.,  34 

aley,   7    Com.  B. 

.r,  53  Wis.  103 
son,  3  Moore  fc  V. 
356;  Blake  r.  ^te- 
32;  11  L.  T.  543 

4  Barn.  &  Adol. 
59. 


by  his  advice,  to  the  detriment  of  his  client ;'  tlint  lie  gave 
di.slioncst  and  unftrofcs.sional  advice,  nuido  false  state- 
ments in  i)rofossional  dealings,  incurred  loss  of  conridenco 
hy  misconduct,  embezzled  moneys,  and  nnido  falso  char- 
ges for  services,  and  extorted  excessive  compensation;'' 
thai,  acting  for  his  client,  he  had  acknowledged  as  sureties 
oil  a  bond  persons  who,  on  investigation,  were  shown  not 
to  have  known  that  their  names  were  on  the  bond.' 

Imatstuatioxs.- -  A  libel  complained  of  Avas  headed,  "How 
Lawyer  li.  treats  his  clients,"  followed  by  a  report  of  a  partic- 
ular ease  in  v  nich  one  client  of  Lawyer  B.'s  had  been  l)adly 
treated.  Tlvit  particular  case  was  proved  to  he  ctirrectly 
reported.  Held,  insudicient  to  justify  the  heading,  which  im- 
pli(;(l  that  Lawyer  B.  generally  treated  his  clients  badly:  Bishop 
V.  Latimer,  4  L.  T.,  N.  S.,  775. 

^  1274.  Medical  Men.  —  It  is  libelous  to  publish  of  a 
medical  man  that  certain  quack  medicines  wore  prepared 
by  him,*  or  to  charge  him  with  causing  the  death  of  a 
patient  by  introducing  scarlet  fever  into  his  system  dur- 
ing vaccination,®  or  that  he  allowed  the  decomposing 
body  of  a  dead  infant  to  remain  several  days  in  the  same 
room  with  the  sick  mother."  Where  tho  publications,  in 
stating  the  conduct  of  a  physician  in  a  particular  case, 
only  impute  to  liim  such  ignorance  or  want  of  skill  as  is 
compatible  with  the  ordinary  or  general  knowledge  or 
skill  in  the  same  profession,  they  are  not  actionable.  But 
where  the  words  so  employed  in  detailing  the  action  of 
the  physician  in  a  particular  case,  taken  together,  are 
such  as  fairly  impute  to  him  gross  ignorance  and  unskill- 
fulness  in  such  matters  as  men  of  ordinary  knowledge 
and  skill  in  the  profession  should  know  and  do,  then  they 
necessarily  tend   to   bring   such   physician    into  public 


'  Hotheringlon  v.  Sterry,  28  Kan. 
421) :  4-2  Am.  Rep.  169. 

^  Atkinson  v.  Detroit  Free  Press  Co. , 
46  Mich.  341. 

^  Henileraon  i\  Commercial  Adver- 
tiasr  Ass'n,  46  Hun,  504. 


♦  Clark 
112. 

*  Foster 
176. 

"Pratt    V.    Press    Co.,    35 
251. 


V.     Freeman,     1 1 
V.     Scripps,     39 


Beav. 
Mich. 
Minn. 


g  1275 


SLANDER   A XI)    LIDKL. 


2284 


hatred,  ridicnilo,  or  profossional  disropnto,  and  honco  uro 
acti()iuil)l(!.'  As  w'lioro  tlio  words  fairly  iinputo  to  a 
physician  a  failure  to  discover  the  presence  of  diplitlu>ria 
until  long  after  it  should  have  been  discovered.''  Hut  it 
is  no  libel  to  say  that  ho  ract  honieopathists  in  consul! a- 
tion.'  A  newspa{)er  proprietor  is  not  liable  in  damagcg 
for  ludicrous,  but  innocent,  niisi)rints  in  an  article  ostcMi- 
tatiously  puffing  the  writer  and  describing  a  surgical 
operation  j^orformod  by  him.^ 

§  1275.    Libels    on    Merchants    and    Traders.  —  Any 

written  words  are  libelous  which  impeach  the  credit  of 
any  merchant  or  trader  by  imputing  to  him  bankru])l(  y, 
insolvency,  or  oven  embarrassment,  either  past,  present, 
or  future,  or  which  impute  to  him  fraud  or  dishonesty,  or 
any  mean  and  dishonorable  trickery  in  the  conduct  of  liis 
business,  or  which  in  any  other  method  are  prejudicial  to 
him  in  the  way  of  his  employment.*  A  publication  is 
libelous  which  holds  the  plaintilf  up  to  the  public  as  want- 
ing in  the  characteristics  and  qualities  of  a  merchant  of 
integrity  and  honor;  although  it  appears  that  the  ])ul)li- 
cation  related  to  the  plaintiff's  conduct  in  a  transaction 
which  was  unlawful,  if  he  acted  in  conformity  to  what  ho 
supposed  to  be  the  law  and  usage  in  similar  cases."  Thus 
it  is  libelous  to  say  of  a  saloon-keeper  that  his  license  has 
been  refused;'  or  of  a  merchant,  that  he  has  gone  into 
bankruptcy,**  or  that  he  i')  in  the  hands  of  a  sheriir,"  or 
that  his  "  assets  are  aboiit  eighteen  hundred  dollars,  .... 
his  indebtedness  about  the  same We  would  advise 


'  Gaiivrcau  ?>.  Superior  Publishing 
Co.,  ()-'  WiH.  403. 

^(i,iu\reau  v.  Superior  Publishing 
Co.,  (i'J  Wis.  4u:j. 

=*  C'l;iy  V.  Roberts,  9  Jur.,  N.  S.,  580. 

*  Sullinga  v.  Sluikespeare,  46  Mich. 
408;  41  Am.  ll>  p.  106. 

"  Odgora  oil  LiI)ol  and  Slander,  .31. 
Iu;i  Icttoi"  stating  that  the  plaintiff  has 
succeeded  to  tlie  writer's  business,  the 
words,   "A  word  to  the  wise  is  suf- 


ficient," held  capable  of  a  libclfma 
meaning:  Hays  v.  Mather,  15111.  Api). 
30. 

"  Chenery  v.  Goodrich,  98  !Ma.s3. 
224. 

'  Bignell  v.  Buzard,  3  Hurl.  &  N. 
217. 

t-  Shcpheard  v.  Whitaker,  L.  K.  10 
Com.  P.  502. 

'  Hermann  v.  Bradstreet  Co.,  19 
Mo.  App.  227. 


2-:.s.) 


i.inKL. 


§1275 


u  cinition  on  your  part  in  sdlinj^,  and  a  prompt  payment 
of  inaturod  in(lol)tc(lnoss,"  -if  falsp;'  or  that  ho  "  scomg 
to  iiavo  covotod  his  hito  partner's  cattle,"  and  that  ho 
"started  for  the  city  with  tiio  cattle,"  andean  officcrwas 
jtui  upon  his  trail"; ^  oi  that  a  person  regularly  supplies 
Itiid  and  unwholesome  water  to  ships,  whereby  the  passon- 
giTs  are  made  ill;'  or  that  a  druggist  makes  and  sella 
counterfeit  articles,  and  puts  them  up  in  counterfeit  wrap- 
pers.'' 

It  is  not  libelous  perse  to  charge  a  grain-deader  with  re- 
ducing the  price  of  grain  by  entering  into  a  combination;' 
nor  is  a  publication  which  recites  of  a  firm  that  it  unfairly 
procured  a  lease  of  certain  premises,  and  then  character- 
i/,os  the  transaction  by  epithets ;"  nor  that  a  dinner  fur- 
nished by  a  caterer  on  a  ])ul)lic  occasion  was" wretched," 
and  was  served  "  in  such  a  way  that  even  hungry  barba- 
rians might  justly  object,"  and  that  "the  cigars  were 
simply  vile,  and  the  wines  not  much  better."'  The  pub- 
lication of  an  article  by  a  manufacturer  cautioning  the 
pul)lic  not  to  form  an  opinion  of  his  manufacture  from 
those  advertised  by  a  tradesman  as  of  "  first  quality,"  since 
they  were  sold  to  him  as  "  damaged,"  is  not  actionable  as 
an  imputation  on  the  tradesman's  character.* 

Illustrations.  —  A  railroad  company  sent  notices  to  its 
agents  instructing  them  to  receive  no  freight  for  the  plaintiff 
iinlesH  the  charges  were  prepaid.  This  order  was  enforced 
against  the  plaintiff  alone,  and  not  against  other  shippers  of 
freight.  Held,  that  no  cause  of  action  was  stated:  Allen  v.  R. 
R.  Co.,  100  N.  C.  397.  The  defendant  published  of  the  plaintiff 
and  his  brother,  who  were  a  firm  of  wholesale  liquor  dealers,  the 
following:  "  To  the  liquor  dealers  of  Hartford:  In  order  that  you 
may  he  on  your  guard  against  the  base  treachery  of  a  concern 
you  may  be  doing  business  with,  I  desire  to  state  a  few  facts 


'  Xcwi'U  V.  How,  31  Minn.  2.15. 

2  lliiii  r.  Myrick,  88  Ind.  137. 

'  Solomon    V,    Lawson,     8    Q.    B. 

82;l 

*  Steketee  v.  Kimm,  48  Mich.  322. 
'  Aclioru  V.  Piper,  66  Iowa,  694. 


*  Donaghiio  «.  Gaffy,  53  Conn.  43; 
54  Conn,  257. 

'  Dooling  i\  Budget  Publishing  Co., 
144  Maes.  258;  59  Am.  Rep.  83. 

"  Boynton  v.  Shaw  Stocking  Co., 
146  Mass.  219. 


§  127G 


SLANDER   AND   LIBEL. 


2286 


in  regard  to  my  experience  with  this  firm.  I  refer  to  Don- 
aghno  Brothers,  consisting  of  WiUiam  and  Edward  Donagluic 
I  have  hecn  in  the  iiabit  of  buying  nearly  all  my  goods  of  them 
for  years,  but  because  I  quit  buying  of  them,  they  Avent  to  the 
savings  bank  of  which  I  rented  my  place,  and  oflercd  ten  dol- 
lars more  a  month  than  I  was  paying,  and  after  getting  their 
lease,  served  a  notice  on  me  to  immediately  vacate.  The  firm 
is  not  worthy  of  our  support,  being  guilty  of  foul  and  unfair  deal- 
ings to  get  square,  as  they  say,  with  one  who  exercises  the  right 
to  trade  where  he  likes,  and  I  sincerely  believe  they  deserve  that 
kind  of  warfare  known  as  boycotting,  and  request  those  m!io 
believe  in  the  fair  tning,  as  between  man  and  man,  to  give  thfir 
support  to  some  other  house.  For  further  particulars  call  on 
the  undersigned.  J.  H.  GafFy."  Held,  not  a  libel  per  se,  and 
that  the  plaintiff  could  not  recover  without  proof  of  special 
damage:  Donaghue  v.  Gaffy,  54  Conn.  257. 

§  1276.  When  Libel  on  Things  a  Libel  on  the  In- 
dividual. — An  attack  on  a  thing  is  a  libel  on  the  owner 
of  it,  or  those  responsible  for  or  connected  with  it,  Avhcn 
it  at  the  same  time  indirectly  attacks  the  individual' 
Thus  to  impute  that  goods  manufactured  or  sold  by  a 
person  are  adulterated  to  liis  knowledge  is  a  charge 
of  dishonesty  and  fraud  in  his  trade,  and  is  actionable;- 
and  it  has  been  held  libelous  to  publish  of  a  ship- 
captain  that  his  ship  is  unseaworthy;'  that  certain  poems 
published  by  a  bookseller  are  immoral  or  absurd;*  that 
certain  songs  sung  by  a  professional  siriger  are  immoral;' 
or  that  the  plaintiff's  bark-mills  which  he  is  selling  in- 
fringes  the  defendant's  patent.^  In  an  English  case  the 
plaintiffs  were  manufacturers  of  bags,  and  had  manu- 
factured a  bag  which  thjy  called  the  "  Bag  of  Bags,"  and 
the  defendant  printed  and  published  the  following:  "  As 
we  have  not  seen  the  *  Bag  of  Bags,'  we  cannot  say  tliat 
it  is  useful,  or  that  it  is  portable,  or  that  it  is  elegant. 
All  these  it  may  be,  but  the  only  point  we  can  deal  vith 
is  the  title,  which  we  think  very  silly,  very  slangy,  and 

1  oarers  on  Libel  and  Slander,  32.  »  Hart  v.  Wall,  L.  K,.  2  Com.  P.  Div. 

*  Odgera  on  Libel  and  Slander,  .32.       146. 

3  Ingrain  v.  Lawaon,  G  Bing.  N.  C.  212.        «  Watson  v.  Trask,  6  Ohio,  531;  27 

*  Tabart  n  'Sipper,  1  Camp.  350.  Am.  Dec.  271. 


2287 


I/IBEL. 


§  1276 


very  vulgar;  and  which  has  been  forced  upon  the  notice 
of  the  public  ad  nauseam."  Luah,  J.,  held  that  the  words 
could  not  be  deemed  libelous,  either  upon  the  plaintiffs 
or  upon  their  mode  of  conducting  their  business.  But 
Mcllor  and  Ilannen,  JJ.,  thought  that  it  was  a  question 
for  the  jury  whether  the  words  went  beyond  the  limits 
of  fair  criticism,  and  whether  or  not  they  were  intended 
to  disparage  the  plaintiffs  in  the  conduct  of  their  busi- 
ness/ 

But  for  one  trader  merely  to  puff  up  his  own  goods,  and 
decry  those  of  bis  rival,  is  no  libel,  unless  fraud  or  dislion- 
csty  be  imputed.'^  And  comments,  however  severe,  on 
the  advertisements  or  handbills  of  traders  are  not  gener- 
ally libelous.' 

Illustrations. —  Defendant  published  an  advertisement  in 
these  words:  "Whereas,  there  was  an  account  in  the  Crafts- 
man of  John  Harman,  gunsmith,  making  guns  of  two  foot  six 
inches,  to  exceed  any  made  by  others  of  a  foot  longer  (with 
whom,  it  is  supposed,  he  is  in  fee),  this  is  to  advise  all  gentle- 
nun  to  be  cautious,  the  said  gunsmith  not  daring  to  engage 
with  any  artist  in  town,  nor  ever  did  make  such  an  experi- 
ment (except  out  of  a  leather  gun),  as  any  gentleman  may 
be  satisfied  of  at  the  Cross  Ckins,  in  Longacre."  Held,  a  libel 
on  tho  plaintiff  in  the  way  of  his  trade:  Harman  v.  Dclany,  2 
Strange,  898;  1  Barn.  289,  438.  Plaintiff  carried  on  the  trade  of 
an  engineer,  and  sold  in  the  way  of  his  trade  goods  called  "  self- 
acting  tallow-siphons  or  lubricators."  Defendant  published  of 
the  j)laintiff  in  his  said  trade  and  as  such  inventor  as  follows: 
"This  is  to  caution  parties  employing  steam-power  from  a  per- 
son offering  what  he  calls  self-acting  tallow-siphons  or  lubri- 
cators, stating  that  he  is  the  sole  inventor,  manufacturer,  and 
patentee,  thereby  monopolizing  high  prices  at  the  expense  of 
the  public.  R.  Harlow  [tlie  defendant]  takes  this  opportunity 
of  saying  that  such  a  patent  does  not  exist,  and  that  he  has  to 
offer  an  improved  lubricator,  which  dispenses  with  the  neces- 
sity of  using  more  than  one  to  a  steam-engine,  thereby  consti- 
tuting a  saving  of  fifty  per  cent  over  every  other  kind  yet  offered 

'  Jcnner  v.  A'Beckett,  L.  R.  7  Q.  B.  S.  264;   Western  Counties  Man.  Co. 

11;  41  L.  J.  Q.  B.  14.  v.  Lawea  Chem.  Co.,  L.  R.  9  Ex.  218. 

''  Evaua  v.  Harlow,  5  Q.  B.  624;  13        »  Paris  v.  Levy,  9  Com.  B.,  N.  S., 

L.  J.  Q.  B.  120;  Horiot  v.  Stuart,  1  342;  Morriaon  v.  Harrnor,  3  Bmg.  N. 

Esp.  437;  Young  v.  Macrae,  3  Beat  &  C.  759. 


§1277 


SLANDER  AND  LIBEL. 


2288 


to  tho  public.  Those  who  bavo  already  adopted  the  lubricatora 
against  which  R.  H.  would  caution  will  find  that  the  tallow  is 
wasted,  instead  of  being  effectually  employed,  as  profof^sud." 
Ilchl,  no  libel  on  the  plaintiff,  either  generally  or  in  tho  way  of 
his  trade,  but  only  a  libel  on  the  lubricators,  and  therefore  not 
actionable  without  proof  of  special  damage:  Evans  v.  Ilarluw^ 
5  Q.  B.  G24;  13  L.  J.  Q.  B.  120.  Plaintiff  sued  for  a  lii)el  con- 
sisting of  an  article  and  a  picture  which  showed  his  saloon  to 
be  the  resort  of  degraded  characters,  etc.  Held,  that  libel  was 
on  the  place  rather  than  on  plaintiff,  and  an  allegation  of 
special  damages  was  necessary:  Kennedy  v.  Press  Pub.  Co.,  41 
Hun,  422. 

§  1277.  Slander  of  Title. —Where  the  plaintiff  pos- 
sesses  an  estate  or  interest  in  any  real  or  personal  prop- 
erty, an  action  lies  against  any  one  Avho  maliciously  and 
falsely  denies  or  impugns  the  plaintiff's  title  thereto,  if 
thereby  damage  follows  to  the  plaintiff.*  The  statement 
must  be  both  false  and  malicious.  It  is  never  actionable 
if  it  is  true,  nor  if  it  is  made  in  the  bona  fide  assertion  of 
tho  defendant's  right,  real  or  supposed,  to  the  property.' 


»  Pater  v.  Baker,  3  Com.  B,  869; 
Liko  V.  RIcKinstry,  3  Abb.  App. 
02;  AnJrew  v.  Deshler,  45  N.  J.  L. 
1(57;  ll;irris3  v.  Sneeden,  101  N.  C 
273.  False,  defamatory,  and  mali- 
cious statements,  made  with  intent  to 
injure  the  owner  of  land  and  his  title 
thereto,  constitute  slander  of  title: 
Dodge  V.  Colby,  108  N.  Y.  445. 

■'  Wahlon  ('.  Peters,  2 Rob.  (La.)  331; 
38  Am  Uic.  213;  Carr  v.  Duckett,  5 
Hurl.  &  N.  783;  Smith  v.  Spooner,  3 
Tuiuit.  240;  Wren  v.  Weiltf,  L.  R.  4 
Q.  B.  73(1;  McUaniel  v.  Baca,  2  Cal. 
326;  56  Am.  Dec.  339;  Stark  v.  Chil- 
wooi],  5  Kan.  141;  Kendall  v.  Stone, 
5  N.  Y.  14;  Like  v.  McKinstry,  41 
Barb.  186.  It  seems  to  be  clear 
that,  in  an  action  at  common  law,  or 
now  in  the  high  court  of  justice,  in 
tho  nature  of  slander  of  title,  where 
the  dct(  lulant  has  property  of  his  own, 
in  defense  of  which  the  supposed 
slander  is  uttered,  it  is  not  enough 
that  tlic  statement  should  be  untrue, 
but  tliero  nmst  be  some  evidence, 
either  from  the  nature  of  the  state- 
ment itself,  or  some  allegation,  or 
something  from  which  the  court,  if  it 


is  the  court,  or  the  jury,  if  it  is  the 
jury,  may  infer  that  the  statement  was 
not  only  untrue,  but  was  made  mala 
Jide  for  tho  purpose  of  injiirinir  the 
plaintiff,  and  not  in  the  bona  fvle  de- 
fense of  the  defendant's  own  property. 
It  seems  to  be  clear  that,  if  a  Ktiite- 
ment  in  such  a  proceeding  aa  t!ii-i  is 
made  in  defense  of  tho  det'ciiduui'a 
own  property,  although  it  injun; ;  and 
is  untrue,  it  is  still  what  the  Liw  calla 
a  privileged  statement;  it  is  a  state- 
ment that  he  has  a  right  to  make, 
unless,  besides  its  untruth  an  I  be- 
sides its  injury,  what  on  the  common- 
law  side  is  called  express  nuiliio  is 
proved,  — that  is  to  say,  want  (if  Ima 
fides,  or  tho  presence  of  mnht  fvlu: 
Coleridge,  C.  J.,  in  Halsey  v.  Brother- 
hood, L.  R.  19  Ch.  Div.  386.  In  aa 
English  case  tho  plaintiff  was  the 
assignee  ot  a  beneficial  loa.sc,  which 
he  expected  would  realize  one  humlreu 
pounds.  But  the  defenduat,  the 
sujjerior  landlord,  came  to  tlio  .sale, 
and  stated  publicly:  "Tiie  whole  of 
the  covenants  of  this  lease  are  Iiroken, 
and  I  have  served  notice  of  ejculment; 
the  premiaea  will  coat  seventy  pouudi 


2289 


L'i'BEL. 


§1277 


Lubricatora 
c  tallow  13 
profoHSod." 
the  way  of 
oroforo  not 
V.  Ildi'low, 
a  libel  con- 
is  saloon  to 
at  lilx'l  wa3 
legation  of 
Pub.  Co.,  41 


lintiff  pos- 
lonal  prop- 
ciously  and 
thereto,  if 
5  statement 
[•  actionable 
assertion  of 
te  property* 

jury,  if  it  is  the 
le  statement  was 
waa  iiiado  )//a!a 
ot  injurinir  the 
;he  bona  ful'i  ile- 
\'a  owu  property, 
that,  if  a  state- 
eding  as  tins  is 
'the   (lefcu'luui'a 
jh  it  injur(3 ;  and 
iiat  the  UiW  calls 
it;    it  is  a  >tate- 
,  rifht  to  make, 
intruth    and  be- 
on  the  coiumoD- 
:pres3    nuilioe  is 
jay,  want  *if  I'Ona, 
\g   of  vinla  ji'lts: 
alsey  v.  Brother- 
liv.  3815.      Ill  ai 
Jaintiif  Avad  the 
Hal  lease,   which 
tlize  one  humlreu 
defendii.it,    the 
ime   to  the  sale, 
"The  wlmle  of 
lease  are  lnoken, 
jice  of  ejcutuieiit; 
It  aeveaty  pound! 


"Want  of  reasonable  or  probable  cause  is  generally  not  suf- 
ficient from  which  to  infer  malice.'     This  is  so  where  the 
defendant  is  the  claimant  himself  or  is  an  agent  or  at- 
torney, and  claims  for  his  principal  or  client  a  title  which 
he  honestly  believes  him  to  possess;^  so  where  a  man 
bona  fide  asserts  a  title  in  his  father  or  other  near  relative 
to  whom  he  or  his  wife  is  heir  apparent.'     But  where  the 
defendant  makes  no  claim   at   all  for   himself   or    any 
connection  of  his,  but  asserts  a  title  in  some  one  who  is 
a  stranger  to  him,  here  he  clearly  is  meddling  in  a  mat- 
ter which  is  no  concern  of  his,  and  such  officious  and 
unnecessary  interference  will  be  deemed  malicious.*      A 
levy  of  execution  against  one  person  upon  lands  belong- 
ing to  another,  and  without  going  upon  the  land,  creates 
no  lien  upon  it,  and  is  not  an  actionable  wrong,  where 
there  is  no  malice;  and  if  not  alleged  to  be  malicious,  it 
will  not  sustain  an  action  for  slander  of  title.^     The  fact 
that  the  licensee  of  a  copyrighted  design  had,  before  ob- 
taining the  license,  infringed  the  copyright,  does  not  make 
a  notice  sent  by  him    to  other  infringers,  on  advice  of 
counsel,  warning  them  to  desist,  give  up  the  infringing 
articles  in  their  hands,  and  account  for  those  disposed  of, 
a  slander  of  title,  though  it  would  be  a  good  defense  to 


to  put  them  in  reapir."  la  conse- 
quence of  this  statement  the  property 
fetched  only  thirty-five  guineas.  Rolfo, 
B.,  left  to  the  jury  only  one  question, 
Was  the  defendant's  statement  true 
or  false  ?  and  they  found  a  verdict  for 
the  plaintiti';  damages,  forty  pounds. 
But  the  court  of  exchequer  granted  a 
new  trial,  on  the  ground  that  two 
other  questions  ought  to  have  been 
left  to  the  jury  as  well:  Was  the 
statement,  or  any  part  of  it,  made 
maliciously  ?  and  did  the  special  dam- 
age arise  from  such  malicious  state- 
meat,  ur  from  such  part  of  it  as  was 
malicious?  Brook  v.  Bawl,  4  Ex. 
521;  19  L.  J.  Ex.  114. 

'  Pitt  V.  Donovan,  1  Maule  &  S.  648; 

Steward  v.  Young,  L.  R.  6  Com.  P. 

122;  22  L.  T.  1G8;  Clark  v.  Molyneux, 

I  L  R.  3  g.  B,  Div.  237;  Pater  t>.  Baker, 

U4 


3Com.  B.  831.  To  constitute  slander 
of  title,  there  must  have  been  malice. 
It  is  not  malicious  to  allege  a  want  of 
title  in  the  owner:  Dodj^e  v.  Colby,  37 
Hun,  515.  The  defendant  is  entitled 
to  a  nonsuit  if  the  evidence  shows 
that  the  existence  of  the  title  alleged 
to  have  been  slandered  is  in  dispute  in 
a  prior  action  between  the  parties: 
Thompson  v.  White,  70  Cal.  135. 

*  Hargrave  v.  Le  Breton,  4  Burr. 
2422;  Steward  v.  Young,  L,  R.  5 
Com.  P.  122. 

'  Pitt  V.  Donovan,  1  Maule  &  S. 
639;  Gutaole  v.  Mathers,  1  Meea.  & 
W.  495. 

♦  Odgers  on  Libel  and  Slander,  143; 
and  see  Atkins  v.  Perrin,  3  Fost.  &  F. 
179. 

»Walldejr  v.  PhUlips,  49  Mich; 
374. 


§1277 


SLANDER  AND   LIBEL. 


2290 


an  action  for  infringement.*  So  where  two  persons  claim 
patents  on  a  certain  machine,  it  is  not  actionable  for  cue 
of  them  to  warn  the  public  or  the  customers  of  the  other 
against  using  the  machine  of  the  latter,  because  it  is  an 
infringement,  unless  the  plaintiff  can  prove  tJiiit  the  de. 
fendant's  claim  was  not  a  bona  fide  one,  even  though 
unfounded,  but  was  a  malicious  attempt  to  injure  him, 
knowing  he  had  no  rights.''  But  it  has  been  held  that  a 
patentee  is  not  entitled  to  publish  statements  that  he 
intends  to  institute  legal  proceedings  in  order  to  deter 
persons  from  purchasing  alleged  infringements  of  his 
patent,  unless  he  does  honestly  intend  to  follow  up  such 
threats  by  really  taking  such  proceedings.' 

And  special  damage  must  be  proved  to  have  resulted 
from  the  defendant's  words,  and  to  be  such  as  would  natu- 
rally or  reasonably  arise  therefrom,*  Special  damage  is 
shown  by  proof  that  the  plaintiff  was  thereby  prevented 
from  selling  his  property,  or  renting  or  leasing  it.^  But 
a  mere  apprehension  of  damage,  or  that  his  property  (not 


'  Hastings  v.  Giles  Lithographic  Co., 
N.  Y.  Sup.  Ct.,  1889. 

«  Wren  v.  Weild,  L.  R.  4  Q.  B.  730. 
Slander  of  title  may  be  predicated  of 
letters  patent;  and  an  action  for  such 
slander  or  libel  lies,  although  defendant 
has  repeated  merely  what  he  has 
heard:  Meyrose  v.  Adams,  12  Mo. 
App.  329.  ''  Here  is  a  patent;  here  is 
a  defendant  in  possession  of  a  patent; 
and  here  is  a  defendant  saying,  for  all 
that  appears,  perfectly  bona  Jide  to 
the  plaintiff,  and  to  the  persons  who 
are  going  to  deal  with  the  plaintiff: 
*  Remember,  what  the  plaintiff  is  mak- 
ing is  an  infringement  of  my  patent, 
and  is  an  injury  to  my  property;  and 
I  tell  you,  that  if  you  proceed  to  in- 
jure my  property,  I  shall  take  pro- 
ceedings against  you.'  The  result  of 
that  may  be  an  injury  to  the  plaintiff. 
Possibly,  in  this  case,  it  has  uoen  an 
injury  to  the  plaintiff.  I  am  quite 
content  to  assume  that  it  has  been; 
but  it  seems,  and  there  appears  to  be 
good  ground  for  it,  that  a  statement 
untrue  and  injurious,  made  under  such 


circumstances,  does  not  give  a  good 

f;round  of  action.  There  must  be, 
)eside3,  the  element  of  mala  fid% 
and  a  distinct  intention  to  injure 
the  plaintiff,  apart  from  the  honest 
defense  of  the  man's  own  proi)erty '; 
Lord  Coleridge,  C.  J.,  in  H.ilseyc, 
Brotherhood,  L.  R.  19  Ch.  Div.  386. 

=*  Rollins  V.  Hinks,  L.  R.  13  Eq. 
355;  41  L.  J.  Ch.  358;  Axinann  c. 
Lund,  L.  R.  18  Eq.  330;  Halsey  i. 
Brotherhood,  L.  R.  15  Ch.  Div.  514, 

«  Haddon  v.  Lott,  15  Com.  B.  411; 
Halsey  v.  Brotherhood,  L.  B.  15  Ch. 
Div.  411;  Kendall  v.  Stone,  5N.  Y,  14; 
Like  V.  McKinstry,  41  Barb.  186. 

^  Odgers  on  Libel  and  Syaiider,  13S; 
Collins  V.  Whitehead,  34  Fed.  Rep, 
121.  Where  one  under  contract  for 
the  purchase  of  property  is  iuducetlto 
refuse  to  complete  the  purcliast;  by  rea- 
son of  slanderous  words  uttured  con- 
cerning the  property  by  a  third  person, 
the  vendor  cannot  sue  such  poison  for 
slander.  Hia  remedy  is  on  tiie  con- 
tract of  sale:  Breutman  v.  Note,  N.  Y, 
Sup.  Ct.,  1889. 


2291 


LIBEL. 


§  1277 


rsons  claim 
,ble  for  one 
,f  the  other 
use  it  is  an 
Imt  the  ele- 
ven though 
injure  him, 
held  that  a 
■nts   tliat  lie 
rder  to  deter 
cients  of  his 
illow  up  such 

tiave  resulted 
,s  would  natu- 
ial  damage  is 
Bby  prevented 
.sing  it.'  But 
property  (not 

iS  not  give  a  good 
'  There  must  be, 
aent  of  mala  fid% 
[ntention  to  injure 
U  from  the  honest 
Ln'a  own  Vi-opevty  ; 
[C    J.,    i"  Halseyr. 

19  Ch.  Div.  386. 
'\ks,  L.    R.  13  Eq. 
,    358;    Axinaira  t. 
Eq.  330;  UaUey  v, 
t  15  Ch.  Div.  514. 
Ptt,  15  Com  B..4  ; 
•hood,L.B.l^/; 
,v.  Stone,  ;)>■}•  1*' 
V  41  Barl).  186. 
,el  autl  Slau.ler,  13S; 
bead,  34  Yf  f^ 
\  under  contract  ir 
ropertyisiu.UiceiUo 
'  thepurchasubyrei- 
J  words  utterca  con- 
■rtv  by  a  third  person, 

t  sue  such  ve"o»f»' 
medy  is  on  the  eo. 
lutmau  V.  Note,  n-  !■ 


ill  the  market)  would  be  discredited,  is  not   sufficient.* 
Exemplary  damages  are  not  to  be  awarded,  unless  there 
be  proof  of  a  wanton  and  malicious  attempt  to  injure  the 
owner.     This  was  held  in  an  action  brought  by  one  whose 
father-in-law,  in  consideration  of  a  life  support,  had  con- 
veyed the  land  to  him,  against  a  brother-in-law,  for  saying 
to  one  who  was  negotiating  a  purchase  thereof,  that  if  he 
consummated  the  purchase,  he  would  buy  a  lawsuit,  etc.'' 
To  maintain  an  action  for  slander  of  title,  it  is  necessary 
for  plaintiff  to  show  either  a  title  or  an  interest  in  the 
property.^     The  defendant,  by  setting  up  title  in  him- 
self to  the  property,  stands  in  the  position  of  a  plaintiff 
in  a  petitory  action,  and   must  make  out  his  case.*    If 
the  defendant  admits  the  slander,  and  avers  a  better  title 
in  himself,  the  court  may  investigate  his  title  in  the  same 
action,  with  the  onus  on  himself,  to  succeed  entirely  on 
the  strength  of  his  own  title.®    The  object  of  an  action  for 
slander  of  title  is  to  quiet   titles,  and  if  this  object  is 
attained  by  a  waiver  of  title  upon  the  part  of  defendant, 
there  can  be  no  recovery  of  damages  against  him,  where 
there  has  been  no  malice  upon  his  part.*     Fraud  in  ob- 
taining a  receipt  of  a  sum,  as  specified  in  a  deed,  is  a 
defense  +o  an  action  for  slander  of  title,  against  the  gran- 
tor of  land  who   published   a  caution    against   persons 
purchasing  from  his  grantee,  claiming  that  the  title  was 
obtained   under    fraudulent    pretenses.^     An   action   for 
verbal  slander  of  title   to   land   cannot  be  maintained 
against  two  persons  jointly.' 

Illustrations. — Lands  were  settled  on  D.  in  tail,  remainder 
to  the  plaintiff  in  fee.  D.  being  an  old  man  and  childless, 
plaintiff  was  about  to  sell  his  remainder  to  A.,  when  the  de- 


'  Oilgers  on  Libel  and  Slander,  139; 
Manning  v.  Avery,  3  Keb.  153;  Mala- 
chy  r.  8oper,  3  Bing.  N.  0.  383. 

'  Van  Tuyl  v.  Riner,  3  111.  App.  556. 

'  Edwards  v.  Burris,  CO  Cal.  157. 

*  Clarkston  v.  Vincent,  32  La.  Ann. 
613;  Gay  v.  Ellis,  33  La.  Ann.  249. 
Sully  V.  Spearing,  40  La.  Ann.  558. 


*  Dalton  V.  Wickliflfe,  35  La.  Ann. 
355. 

oVValden  v.  Peters,  2  Rob.  (La.) 
331;  38  Am.  Dec.  213: 

'  McDauiel  v.  Baca,  2  CaL  326;  56 
Am.  Dec.  339. 

«  Webb  V.  Cecil,  9  R  Men.  198;  48 
Am.  Dec.  423. 


8fl277 


SLANDER  AND   LIBEL. 


2292 


fendant  interfered  and  asserted  that  D.  had  issue.  A.  conse- 
quently refused  to  buy.  Held,  that  the  action  lay:  £?m  v. 
Stafford,  Owen,  37;  Moore,  188.  The  plaintiff's  father  being 
tenant  in  tail  of  certain  lands,  which  he  was  about  to  sell,  the 
purchaser  offered  the  plaintiff  a  sum  of  money  to  join  in  the 
assurance  so  as  to  estop  him  from  attempting  to  set  aside 
the  deed,  should  he  ever  succeed  to  the  estate-tail;  but  the  do- 
fendant  told  the  purchaser  that  the  plaintiff  was  a  bastard, 
wherefore  he  refused  to  give  the  plaintiff  anything  for  his 
signature.  Held,  that  the  plaintiff  had  a  cause  of  action,  though 
he  was  the  youngest  son  of  his  father,  and  his  chance  of  puc- 
ceeding  therefore  remote;  Vaughan  v.  Ellis,  Cro.  Jac.  213.  The 
defendant  falsely  represented  to  the  bailiff  of  a  manor  that  a 
she*-^"  of  the  plaintiff  was  an  estray,  in  consequence  of  which  it 
v/  ngfully  seized.     //(?/(/,  that  an  action  lay  against  him: 

i\  '     V.  Zachary,  Aleyn,  3.     Plaintiff  had  purchased  the 

manor  and  castle  of  H.  in  fee  from  A.,  and  was  about  to  demise 
+  •'  'n  to  R.  for  a  term  of  twenty-two  years,  when  the  defendant, 
a  \vi J  '•,  sa'  '  "I  have  a  lease  of  the  castle  and  manor  of  II. 
for  ninety  ycarr  ";  and  she  showed  him  what  purported  to  he  a 
lease  from  a  former  A,  to  her  husband  for  a  term  of  ninety  years. 
This  lease  was  a  forgery;  but  the  defendant  was  not  aware  of 
it.  Held,  that  no  action  lay  for  slander  of  title;  for  the  de- 
fendant had  claimed  a  right  to  the  property  herself.  Alltcr, 
had  she  known  the  lease  was  a  forgery:  Gerard  v.  Dickenson,  4 
Rep.  18;  Cro.  Eliz.  197.  A.  died  possessed  of  furniture  in  a 
beer-shop.  His  widow,  without  taking  out  administration, 
continued  in  possession  of  the  beer-shop  for  three  or  four  years, 
and  then  died,  having  whilst  so  in  possession  conveyed  all  tlie 
furniture  by  bill  of  sale  to  her  landlords  by  way  of  security  for 
a  debt  she  had  contracted  with  them.  After  the  widow's  death, 
the  plaintiff  took  out  letters  of  administration  to  the  estate  of 
A.,  and  informed  the  defendant,  the  landlords'  agent,  that  the 
bill  of  sale  was  invalid,  as  the  widow  had  no  title  to  the  furni- 
ture. Subsequently,  the  plaintiff  was  about  to  sell  the  furniture 
by  auction,  when  the  defendant  interposed  to  forbid  the  sale, 
and  said  that  he  claimed  the  goods  for  his  principals  under  a 
bill  of  sale.  In  an  action  for  slander  of  title  the  plaintiff  was 
nonsuited.  On  appeal,  held,  that  the  mere  fact  of  the  defend- 
ant's having  been  told  before  the  sale  that  the  bill  of  sale  was 
invalid  was  no  evidence  of  malice  to  be  left  to  the  jury,  and 
that  the  plaintiff  was  therefore  properly  nonsuited:  Stevmrd\. 
Yo^()lg,  L.  R.  5  Com.  P.  122.  D.  published  iii  the  notice  of  de- 
fect of  A.'s  title  to  an  oleomargarine  patent  that  "  a  final  injunc- 
tion and  decree  was  obtained  against  A.  in  the  United  tStates 
circuit  court."  whereas,  in  fact,  there  had  been  only  an  ex  parte 
order  for  a  preliminary  injunction,  and  the  suit  was  discontinued 


2293 


LIBEL. 


§1278 


by  consent  of  the  parties.     Held^  in  an  action  for  slander  of 
title,  that  such  allegation  was  in  excess  of  the  occasion,  and 
not  merely  an  assertion  of  a  supposed  right,  and   must  be 
presumed  malicious:  Andrew  v.  Deshler,  45  N.  J.  L.  167.     A 
written  contract  had  been  entered  into,  before  the  words  were 
spoken,  for  the  sale  of  the  land  in  question,  and  the  purchaser, 
having  heard  thereof,  became  in  consequence  dissatisfied  with 
his  bargain,  and  the  plaintiff,  at  his  request,  canceled  it.    Held, 
that  the  action  could  not  be  maintained,  the  pecuniary  damage 
being  the  result  of  his  own  act:  Kendall  v.  Stone,  5  N.  Y.  14. 
Plaintiff  offered  his  land  for  sale  at  auction,  defendant  was 
present,  and  forbade  the  sale,  declaring  that  plaintiff  had  only  a 
dower  interest  in  the  land,  and  that  the  title  was  in  himself;  in 
so  declaring,  defendant  was  acting  under  advice  of  counsel,  but 
Buch  evidence  was  procured  by  false  representations  made  to 
his  counsel  by  defendant.     Held,  proper  for  the  court  to  submit 
the  question  of  the  latter's   malice  or  bona  fides  to  the  jury: 
Gent  V.  Lynch,  23  Md.  58;  87  Am.  Dec.  559.     Defendant,  a  book 
publisher,  issued  a  circular,  charging  that  plaintiff,  by  certain 
publications,  infringed  defendant's  copyright.    Plaintiff  sued  to 
recover  damages  sustained  by  the  publication  of  the  circular. 
Held,  that  the  suit  was  in  the  nature  of  an  action  for  slander 
of  title,  and  that  actual  malice  must  be  shown  to  justify  a  re- 
covery: John  W.  Lovell  Co.  v.  Houghton,  54  N.  Y.  Sup.  Ct.  GO. 
A  receiver  appointed  in  a  partition  suit  leased  the  land  for  a 
term  of  years.     Afterwards,  the  court  abridged  the  lease,  so  as 
to  end  it  shortly  after  the  time  set  for  partition  sale.     After  the 
sale,  this    order  was  affirmed   on   appeal.     At  the   sale  the 
lessees,  who  were  then  in  possession,  read  a  notice  claiming 
the  land  for  the  full  period  of  their  lease.    Held,  that  such 
notice,  being  the  lessees'  only  means  of  protecting  their  claims 
against  an  innocent  purchaser,  was  not  slander  of  title:  Corn- 
well  v.  Parke,  N.  Y.  Sup.  Ct.,  1889. 

§  1278.  Slander  of  Goods.  —  An  untrue  statement  dis- 
paraging a  man's  goods  or  property,  published  without 
a  lawful  occasion,  and  causing  him  special  damage,  is  ac- 
tiouable.^    But  it  is  not  actionable  for  a  man  to  commend 


'  West.  etc.  Manure  Co.  v.  Lawes 
Chem.  Manure  Co.,  L,  R.  9  Ex.  218; 
Watson  V.  Trask,  6  Ohio,  531;  27  Am. 
Deo.  271;  Wilson  v.  Dubois,  35  Miun. 
471;  59  Am.  Rep.  335;  Weir  v.  Allen, 
51  N.  H.  171.  In  Addison  on  Torts, 
184,  it  is  said:  "  Disparaging  criticisms 
by  one  tradesman  upon  the  goods 
of  a  rival  tradesman  are  act  action- 


able, unless  it  is  proved  that  they  have 
been  maliciously  and  fraudulently 
made,  and  were  false  to  the  knowledge 
of  the  party  at  the  time  they  were 
made."  But  Mr.  Odgers  (Libel  and 
Slander,  147),  after  a  review  of  all  the 
English  cases,  holds  that  the  defend- 
ant a  knowledge  of  the  falsity  of  his 
statements  at  the  time  he  made  them 


1278 


SLANDER  AND   LIBEL. 


229-1 


his  own  goods,  or  to  advertise  that  he  can  make  as  good 
articles  as  any  other  person  in  the  trade.'  No  action  lies 
for  representing  the  plaintiff's  ferry  not  to  be  as  good  us 
another  rival  ferry,  and  inducing  and  persuading  travel. 
ers  to  cross  at  the  other,  and  not  at  the  plaintiff's,  fony." 

Illustrations. —  A  mineral-oil  merchant  published  a  clinn- 
ist's  report,  which  reflected  unfavorably  upon  the  oil  sold  hy  a 
rival  merchant.  Held,  thai  the  action  would  not  lie,  provided 
the  report  was  the  result  of  a  bona  fide  analysis  of  the  oils,  and 
contained  nothing  known  to  the  defendant  as  false  at  the  time 
of  publication:  Young  v.  Macrae,  3  Best  &  S.  2G4.  The  deft nd- 
ants  falsely  and  without  lawful  occasion  published  a  detailed 
analysis  of  the  plaintiffs'  artificial  manure  and  of  their  own, 
in  which  the  plaintiffs'  manure  was  much  disparaged  and  thoir 
own  extolled.  Special  damage  resulted.  Held,  that  the  action 
lay:  Western  Counties  Manure  Co.  v.  Lawes  Chemical  Mitmin: 
Co.,  L.  R.  9  Ex.  218.  The  defendant  published  an  advertise- 
ment, denying  that  the  plaintiff  held  any  patent  for  the 
manufacture  of  "self-acting  tallow-siphons  or  lubricators,"  and 
cautioning  the  public  against  such  lubricators  as  wasting  tlio 
tallow.  No  special  damage  was  alleged.  Held,  that  the  words 
were  not  a  libel  on  the  plaintiff,  either  generally  or  in  the  way 
of  his  trade,  but  were  only  a  reflection  upon  the  goods  sold  by 
him,  which  was  not  actionable  without  special  damage:  Ji^vans 
V.  Ilarloio,  5  Q.  B.  624;  13  L.  J.  Q.  B.  120.  H.  was  prevented 
from  making  an  advantageous  sale  of  lands  belonging  to  liiin, 
and  containing  an  iron-ore  mine,  by  the  misrepresentations  of 
P.  to  the  proposed  buyer,  to  the  effect  that  an  experienced  iron 
manufacturer  was  of  the  opinion  that  the  iron  mine  was  l)ut  a 
"  pocket,"  or  nest,  that  would  suddenly  run  out.  Held,  tliat  II. 
could  recover  damages  from  P.  in  a  suit  in  the  nature  of  an 

is  immaterial  except  on  the  question 
of  damages;  quoting  Cockburn,  C.  J., 
in  Young  v.  Alacrae,  3  Beat  &  S.  207, 
where  he  said:  "  I  am  far  from  saying 
that  if  a  man  falsely  and  maliciously 
makes  a  statement  disparaging  an  ar- 
ticle which  another  manufactures  or 
vends,  although  in  so  doing  he  casts  no 
imputation  on  his  personal  or  profes- 
sional character,  and  thereby  causes  an 
injury,  and  special  damage  is  averred, 
an  action  might  not  be  maintained. 
For  although  none  of  us  are  familiar 
with  such  actions,  still  we  can  see  tliat 
a  most  grievous  wrong  might  be  done 
in  that  way,  and  it  ought  not  to  be 
without  remedy."  "  If  a  maa  makes  a 


false  statement  with  respect  to  the 
goods  of  A,  in  comparmg  hii  uwu 
goods  with  those  of  A,  and  A  sutibrii 
special  damage,  will  not  an  iKtimi 
lie?"  Per  Cockburn,  C.  J.,  in  Younj; 
V.  Macrae,  32 L.  J.  Q.  B.  8.  "If  a  umn 
were  to  write  falsely  that  vliat  an- 
other man  sold  as  Turkish  rhubn  i  li  w:;s 
three  parts  brick-dust,  and  .-ptcal 
damage  could  be  proved,  it  uiiglit 
be  actionable ":  Id.  See  Huwv  v. 
Leather  Tip  Pencil  Co.,  57  N.  Y.  119; 
15  Am.  Rep.  470, 

'  Harman  v.  Delany,  2  Strange,  898; 
1  Barn.  289. 

'  Johnson  v.  Hitchcock,  15  Johns. 
185. 


2295 


LIBEL. 


§1279 


action  of  slander  for  defamation  of  title:  Panll  v.  Ilalferty,  63 
Pa.  St.  40;  3  Am.  Rep.  518.  A  notice  in  a  newspaper  advised 
applicants  for  board  at  a  specified  street  and  number  to  "inform 
themselves,  before  locating  there,  as  to  tabic,  attention,  and 
charactej-istics  of  the  proprietors."  Held,  not  libelous  per  se: 
Wallace  v.  Bennett,  1  Abb.  N.  C.  478.  "Caution.— The  sub- 
scribers, the  only  shippers  of  the  true  and  original  Franklin 
coal,  notice  that  other  coal  dealers  in  L.  than  our  agent,  J.  S., 
advertise  Franklin  coal.  We  take  this  method  of  cautioning 
the  public  against  buying  of  other  parties  than  J.  S.,  if  they 
hope  to  get  the  genuine  article,  as  we  have  neither  sold  nor 
shipped  any  Franklin  coal  to  any  party  in  L.  except  our  agent, 
J.  S."  Held,  no  libel  upon  a  dealer  in  coal  in  L.  who  has  adver- 
tised genuine  Franklin  coal  for  sale:  Boynton  v.  Remington,  3 
Allen,  397.  The  plaintiff  alleged  that  ho  was  and  had  been 
engaged  in  compiling  and  publishing  biennial  and  county 
directories  at  great  labor  and  expense,  and  had  acquired  a 
large  advertising  patronage  therefor  and  a  large  list  of  sub- 
scribers; that  he  had  prepared  to  and  would  have  published 
the  same  in  1885,  but  that  by  reason  of  the  false  and  fraudulent 
statement  of  the  defendant  that  he  had  gone  out  of  the  business, 
and  disparaging  his  business,  he  had  been  prevented  from  doing 
BO,  and  the  defendant  had  published  such  a  directory  to  his 
injury;  but  he  did  not  allege  that  he  had  been  deprived  of  the 
benefit  of  any  contract  or  property,  or  that  the  defendant  pub- 
lished the  directory  as  the  plaintiff's,  nor  any  infringement  of 
copyright.  Held,  no  cause  of  action:  Dudley  v.  Briggs,  141 
Mass.  582;  55  Am.  Rep.  494. 

§  1279.  Other  Gases.  —  Other  cases  in  which  words 
spoken  caused  special  damage  to  another,  and  an  action 
was  held  to  lay,  although  the  reputation  of  the  plaintiff 
was  not  affected  at  all,  are  to  be  found  in  the  reports/  If 
a  man,  it  is  said  in  Conesby's  Case^  should  menace  my 
tenants  at  will,  per  quod  they  depart  from  their  tenures, 
an  action  upon  the  case  will  lie  against  him,  but  the  men- 
ace without  their  departure  is  no  cause  of  action.  So  if 
a  person  threatens  the  plaintiff's  workmen,  so  that  they 
do  not  dare  to  go  on  with  their  work,  whereby  the  plain- 
tiff loses  the  selling  of  his  goods,  an  action  lies.*     In  an 

'  See  Title  Torts  —  Damnum  Absque  Rolle  Abr.  108;  Tarleton  v.  McGawley, 

Injuria.  Peake,  270;  Springhead  Spinuing  Co. 

« Year  Boole,  9  Hen.  VII.,  p.  7.  v.  Riley,  L.  R.  G  Eij.  551;  Skinner  v. 

'Garret  v.  Taylor,  Cro.  Jac.  567;  1  Kitch,  L.  R.  2  Q.  B.  393. 


§1279 


SLAXDEB  AND   LIB3L. 


2296 


English  case,  tho  defendant  wrongfully  and  maliciously 
caused  certain  persons  who  had  agreed  to  sell  goods  to 
the  plaintiff  to  refuse  to  deliver  them,  by  asserting  that 
he  had  a  lien  upon  them,  and  ordering  those  persons  to 
retain  tho  goods  uatil  further  orders  from  him,  ho  well 
knowing  at  the  time  that  he  had  no  lien.  The  court  held 
that  the  action  was  maintainable,  though  the  persons  who 
had  the  goods  were  under  no  legal  obligation  to  obey  tho 
orders  of  the  defendant,  and  their  refusal  was  their  own 
spontaneous  act.* 

'  Green  v.  Button,  2  Cromp.  M.  &  R.  707. 


2297 


DEFENSES. 


§1280 


CHAPTER  LXVII. 

DEFENSES. 

Justification  —  Truth  when  a  defense. 

Privileged  communications-  Absolute  and  qualified  privUege. 

Absolute  privilege  -  Executive  of  nation  and  state.  ^ 

Members  of  legislative  bodies. 

Witnesses  in  judicial  proceedings. 

Judges. 

Jurors. 

Pleadings  and  papers  in  cause. 

Counsel  and  attorneys. 

Military  courts. 

Qualified  privilege  —  Duty  to  society. 

As  to  character  of  servants. 

Answers  to  confidential  inquiries. 

Information  voluuteered. 

Confidential  relations. 

Statements  to  officers  of  the  law  and  pubUc  authorities. 

Common  interest. 

Self -defense. 

Reports  of  judicial  proceedings. 

Legislative  proceedings. 

Other  reports  —  No  privilege., 

Malice— Proof  of. 

§  1280.    Justification  —  Truth  when  a  Defense.  —  The 

falsehood  of  defamatory  words  is  presumed,  and  the  onus 
IS  on  the  defendant  to  prove  their  truth.*  But  if  he  can 
do  so,  the  truth  of  the  statement  is  a  complete  defense  to 
either  an  oral  or  a  written  or  printed  slander,  and  this, 
even  though  the  words  were  published  spitefully  and  ma- 
liciously.     Where  the  charge  imputes  to  the  plaintiff  the 

^^l^ltTlec' e^^aZ'J   W'    P^"*"*^'  ^0  ^"«°'  76;  Perry  r.  Por- 

r.  Fleming,  43  Misf?lb<5Ar^^'^^^^^  pf  the  words  spoken.     If  the  words 

614;  McBee  *  Fulton  47  M^^hJ^'ls  impute  a, crinie  punishable  by  law.  and 

Am.  Ren   4f,'i.    Aii^' *        t  *    ,   ^°  *""«  ""O*  »»  the   nature  of  privileged 

VVeni  5?3   24  aS  D°  X^T^^'  ^  '^^^^r'^'^tions,  the  filing  ?f  a  pfea 

".  Ota,  J4  Am.  Dec.  97;  Foss  v.  may  be  attended  with  one  of  three 


§  1280. 

§  1281. 

§  1282. 

§  1283. 

§  1284. 

§  1285. 

§  128G. 

§  1287. 

§  1288. 

§  1289, 

§  1200. 
§  1291. 
§  1292. 
§  1293. 
§  1294. 
§  1295. 
§  1296. 
§  1297. 
§  1298. 
§  1299. 
§1300. 
§  1301. 


1280 


SLANDER   AND   LIBEL. 


2298 


commission  of  a  crime,  the  truth  of  tho  charge  (according 
to  tlio  weight  of  authority)  iiootl  not  bo  proved  bcyoiKJ  a 
roasoiiublo  doubt,  as  tlio  plaintiff's  guilt  in  a  criminal  trial 
would  have  to  be  proved,  but  it  is  sufficient  to  prove  it  ly 
a  preponderance  of  the  evidence  as  in  other  civil  issi  ' 
This  defense  must  be  specially  pleaded;  it  is  not  ad. 
siblo  in  bar  under  the  general  issue." 

Tho  justification  must  be  as  broad  as  the  charge.^  A 
general  charge  cannot  be  justified  by  proving  ti  siiifrly 
instance;*  a  charge  of  misconduct  of  a  specific  kind  is 


results:  I.  If  wholly  unwarranted, 
tlio  jury  may  treat  it  as  an  aggrava- 
tion; 2.  If  proved  true,  it  defeats  the 
action;  3.  If  not  proved  true,  tho  evi- 
dence given  under  it  may  mitigato  the 
damages:  lloiulcraon v.  tox, Ga.,  1889. 
Tho  Ma.ssaclnisctts  Htatuto  that  the 
truth  of  a  libel  shall  bo  deemed  a  suf- 
ficiunt  justiticiitiou,  "  unless  malicious 
intention  sliall  be  proved,"  applies  to 
civil  actions  as  well  as  to  criminal  pros- 
ecutions: Torry  w.  Porter,  124Mass.338. 

'  Ellis  V.  Buzzell,  (JO  Me.  20!);  11 
Am.  Hep.  20-1;  Matthews  v.  Huntley, 
9  N.  II.  140;  Kincade  v.  Bradshaw,  3 
Hawk.s,  03;  Sloan  v.  Gilbert,  12 
Bush,  ol;  23  Am.  Rep.  708;  McBee 
V.  Fulton,  47  Md.  403;  28  Am.  Rep. 
405;  Bell  v.  McGiuncss,  40  Oliio  St. 
204;  48  Am.  Rop.  G73;  Barficld  v. 
Britt,  2  Jones,  41;  G2  Am.  Dec.  190; 
Kidd  V.  Flcek,  47  Wis.  443;  Riley  v. 
Norton,  65  Iowa,  300;  Tunnell  v.  Fer- 
guson, 17  111.  App.  70;  Scott  v.  Flem- 
ing, 17  111.  App.  501;  Edwards  v. 
Knai^p,  97  Mo.  432.  Contra,  Fountain 
V.  West,  23  Iowa,  9;  92  Am.  Dec. 
406;  Ellis  v.  Lindley,  38  Iowa,  461; 
Tucker  v.  Call,  45  Ind.  31 ;  Newbit  v. 
Statuck,  35  Me.  315;  58  Am.  Dec. 
700;  Merk  v.  Gelzhaeuser,  50  Cal.  G31; 
Corblcy  ('.  Wilson,  71  111.  209;  22  Am. 
Kep.  98;  Williams  v.  Gunnels,  66  Ga. 
521;  Burckhalter  v.  Coward,  16  S.  0. 
435;  Byrket  v.  Monohon,  7  Blackf.  83; 
41  Am.  Dec.  212. 

»  Porter  v.  Botkins,  59  Pa.  St.  484; 
Thomas  v.  Duuaway,  30  111.  373;  Van 
Ankin  v.  Westfall,  14  Johns.  233; 
Wormouth  v.  Cramer,  3  Wend.  395; 
20  Am.  Dec.  700;  Beardsley  v.  Bridg- 
man,  17  Iowa,  290;  Thompson  v.  Bow- 


ers, 1  Doug.  (Mich.)  321;  IIiisoii  ,•, 
Dale,  19  Mich.  17;  2  Am.  R,  p.  IIO: 
Treat  v.  Browning,  4  Cdiiu,  4l»S;  In 
Am.  Dec.  150;  Kelley  v.  Dillon,  5 
Ind.  420;  Knight  v.  Foster,  'i'.)  \.  H, 
576;  Jarnigan  v.  Fleming,  43  .Miss, 
710;  5  Am.  Rep.  514;  Bouilim,!  i., 
Eidson,  8  Gratt.  27;  Scott  v.  Mclviij- 
nish,  15  Ala.  602;  llutchiiLson  r. 
Wheeler,  35  Vt.  330;  Sliealum  r.  ",1. 
tins,  20  111.  325;  71  Am.  Dl- 
Sweeney  v.  Baker,  13  W.  Va. 
Am.  Kep.  757;  Padgett  v.  S\ 
65  Md.  404;  Duval  v.  Davey,  '.Vl  ihno 
St.  604.  j4 //'<(?>•  where  it  is  a^'ncil  that 
tho  idaintiff  may  introduce  siuh  m- 
donco  under  tho  plea  of  not  guiltv: 
Woddrop  V.  Thachcr,  117  Va.  St,  m 
But  it  may  bo  introduced  to  roliiit 
malice,  and  in  mitigation  of  d;iinaj;es; 
Huson  V.  Dale,  19  Mich.  17;  2  Am. 
Rep.  66;  Remington  v.  C()ii;^(loii,  2 
Pick.  310;  13  Am.  Dec.  431.  A  plea 
of  justification  should  specify  the 
crime  with  certainty:  Nail  r.  Hill, 
Peck,  325;  Andrews  v.  Vamluzer.  ij 
Johns.  38;  Billings  v.  Waller,  'J8  How. 
Pr.  97.  On  such  a  plea  the  dcfuiidimt 
is  entitled  to  the  opening  and  clusing 
of  the  case:  Stith  v.  Fullermedcr,  40 
Kan.  73. 

»  Burford  v.  Wible,  32  Pa.  St.  05; 
Carpenter  v.  Bailey,  56  N.  H.  283; 
Still  well  V.  Barter,  19  Wend.  487 ;  State 
V.  Buraham,  9  N.  H.  34;  31  Am.  Dec. 
217;  Whittemore  v.  Weiss,  33  Mich. 
348;  Sweeney  V.  Baker,  13  W.  Va.  158| 
31  Am.  Rep.  757;  Jones  v.  TownsenJ, 
21  Fla.  431;  58  Am.  Rep.  C70;  Hathorn 
V.  Congress  Spring  Co.,  44  Hun,  008. 

♦  Bnrford  v.  Wible,  32  Pa.  St.  95. 
In  an  action  of  slander  for  calUug  the 


2290 


DEFENSES. 


8  12S0 


(accorcVmg 
d  beyond  u 
,minul  triul 
prove  il  I'y 
dvil  irisi  ' 
not  ud 

charge.^  A 
ng  a  sinf^lo 
lific  kind  is 

1  3'Jl;   Husou  i; 

2  Am.  Ivip.  liii; 
[  t'oiiu.  4l)S;  !() 
ley  V.  I'illiiu,  5 
Foster,  'i',)  \.  H. 
eiiiing,  -I'i  Mis^. 
14;    Bouiliiinl  V. 

Scott  ('.  McKia- 

llutfhiusou   i'. 

;  Sliealuni  r.  "il- 

I   Am.   Dt"         ; 

3  W.  Va. 
gctt  V.  iS\ 

'}.  Davoy,  li'i  Uluo 
3  it  ia  aj,'ri'i'(l  that 
troduco  siu'h  fvi- 
ea  of  iiot  t^uilty; 

.,  ini'a.  St.  m 

roduccd  to  rolnit 
atiou  ot'  (Imia^es; 
Mich.  17;  '2  Am. 
,11  r.  C(in;;iloii,  '2 
3ec.  431.    A  iilei 

luld    specify   the 

.y:    Nail   r.   Hill, 

a  11.  Vauiluzer.  11 

Waller,  'J8  How. 

lea  the  ik't'umlaut 
>enins;  aivl  clusinij 
FuUeruieder,  40 

le.  32  Pa.  St.  05; 
f,  5G  N.  H.  iSS; 
9Wend.487;f<tate 
.  34;  31  Am.  Dec. 
_,  Weiss,  33  Mich. 
Ler,13W.Va.  158; 
'ones  V.  TownsenJ, 
Rep.  C7C;  Hathorn 
Co.,  44  Hun,  008. 
,le,  32  Pa.  St.  95. 
xder  for  calling  m 


not  justified  by  proving  tho  plaintiff  guilty  of  miscondnot 
of  II  similar  character.'  It  is  libelous  to  publish  n  higjily 
colortid  account  of  judicial  proceedings,  inixod  with  tho 
reporter's  own  observations  and  conclusions  upon  what 
passed  in  court,  containing  an  insinuation  that  tho 
jilaintitr  had  eonimittcd  perjury,  and  it  is  no  justification 
to  pick  out  such  parts  of  tho  libol  as  contain  an  account 
of  tho  trial,  and  to  plead  that  such  parts  are  true  and 
accurate,  leaving  tho  extraneous  juu'tor  altogether  unjus- 
tilied.'*  It  is  no  justification  of  a  cha.go  that  tho  plaintiff 
is  a  pettifogger  and  without  character,  that  he  was  guilty 
of  misconduct  in  a  single  instance;^  or  of  a  charge  that 
the  i)laintifF  stole  hogs,  that  ho  stole  a  hog;*  or  of  a  charge 
that  ho  stole  a  horso,  that  ho  stole  a  hog;®  or  of  a  charge 
that  the  plaintiff  had  been  three  times  dis1)arrod  from 
practice,  that  he  had  once  been  so  suspentiod;"  or  of  a 
charge  that  "sho  had  gone  nine  miles  from  homo  one 
night  to  four  different  colliers'  shanties,  and  had  gone 
to  bod  to  them,"  that  on  one  occasion  she  had  committed 
fornication  with  one  collier,  but  not  at  the  shanties;'  or 
of  a  charge  that  the  plaintiff  was  guilty  of  sodomy  with  a 
man,  that  he  was  guilty  of  sodomy  with  a  cow;^  or  of 
a  charge  that  a  man  had  criminal  intercourse  with 
A,  that  ho  had  criminal  intercourse  with  B;"  or  of  a 
charge  that  one  swore  falsely  before  the  register  of  the 
land-office,  that   he  made  a   false  oath   before  a  notary 


plaintiff  a  whore,  evidence  that  the 
plaiiitifT  committed  acts  of  prostitu- 
tion two  months  after  the  words  were 
spoken  is  inadmissible:  Beggarly  v. 
Craft,  31  Ga.  309;  76  Am.  Dec. 
087. 

'  Howard  v.  Thompson,  1  Am.  Lead. 
Cas.  178;  Skinner  v.  Powers,  1  Wend. 
4.M;  Sharps.  Stephenson,  12Ired.  348. 
Where  words  complained  of  as  libel- 
ous allege  a  habit  oi  committing  a  cer- 
tain kind  of  unlawful  or  flagitious  act, 
as  well  as  a  speciflc  instance  of  the 
same,  defendant  may  plead  in  defense 
or  mitigation  other  specific  instances 


of  the  same  kind  of  act  of  which  the 
plaintiff  has  been  guilty:  Kimball  v. 
Fernandez,  41  Wis.  3*29. 

» Stile  V.  Nokes,  7  East,  493;  Carr 
V.  Jones,  3  Smith,  491. 

8  Fitch  V.  Lemmon,  27  U.  C.  Q.  B. 
73. 

♦  Swan  V.  Rary,  3  Blnckf.  298. 

"  DiUard  v.  Collins,  25  Gratt.  .343. 

•  Clarkson  v.  Lawson,  (i  Bing.  2G6. 
'  Burford  v.  Wible,  .32  Pa.  St.  95. 

^  Downs  V.  Haw  ley,  112  Mass. 
237. 

'Walters  v.  Smoot,  11  Ired.  315; 
Sharp  V.  Stephenson,  12  Ired.  348. 


§1280 


SLANDER  AND  LIBEL. 


2300 


public;*  or  of  a  charge  that  he  was  a  "  felon  editor,"  that 
he  had  been  convicted  of  felony  and  sentenced  to  twelve 
months'  imprisonment;^  or  of  a  charge  that  a  justice  of 
the  peace  stole  whisky  fines,  that  he  did  not  pay  over  a 
a  fine  for  an  assault;^  or  of  a  charge  that  a  woman  was  a 
"  whore,"  that  she  had  sexual  intercourse  with  her  afTi- 
anced  husband   before  marriage;*   or  of  a  cliarge  that 
plaintiff  was  a  "  land  shark,"  that  plaintiff  had  the  rcj  u- 
tation  of  purchasing  lands  at  tax  sales,  and  had  purcluiscd 
largely  at  such  sales;®  or  of  a  charge  that  a  county  com- 
missioner  had  been  corruptly  influenced   by  pecuniary 
considerations,  and  had  willfully  acted  and  voted  as  com- 
missioner when  his  private  interests  were  involved,  that 
a  public  road  across  plaintiff's  land  was  a  public  neces- 
sity, that  plaintiff  had  closed  up  a  road  which  he  had 
fo^'  ic,  /  permitted  the  public  to  use,  that  the  commis- 
sioners had  opened  a  road  over  the  land,  and  the  vioAvers 
had  assessed  plaintiff's  damages  at  fifty  dollars,  but  that 
plaintiff  asserted  a  claim  before  the  commissioners  for 
ten  thousand  dollars,  and  threatened  that  if  it  was  not 
approved   he   would   enforce   its    payment   through   tlie 
courts;*  or  of  a  charge  that  he  was  a  "libelous  journal- 
ist," that  he  had  libeled  one  man  who  had   recovered 
damages  against  him;'  of  a  charge  "that  no  boys  had 
for  the  last  seven  years  received  instruction  in  the  Fre*^ 
Grammar  School  at  Lichfield,"  of  which  plaintiiF  was 
head  master,  and  that  the  decay  of  the  school  seemed 
mainly  attributable  to   the   plaintiff's   violent    conduct, 
that  no  boys   had  in  fact   received   instruction   in  the 


'  Phillips  V.  Beene,  16  Ala.  720. 

*  Leyinan  v.  Latimer,  L.   R.  3  Ex. 
Div.  15,  352. 

"  Bailey  v.  Kal.  Pub.  Co.,  40  Mich. 
251. 

*  Sheehey  v.  Cokley,  43  Iowa,  183; 
22  Am.  Rep.  2.36. 

^  Stewart  v.  Minnesota  Tribune  Co.. 
Minn.,  1889. 
•Cotuila  V.  Kerr,  Tex.,  1889.    la 


such  cas'j  the  justification  mui*t  l)o  con- 
fined to  the  fact  that  plaintiff,  .u  a 
county  commissiouer,  did  sit  in  juilg- 
ment  in  a  matter  wherein  hu  lia^l  a 
pecuniary  interest,  and  did  willfully 
act  and  decide  in  favor  of  hia  peisciiial 
interest,  instead  of  in  accordauco  with 
his  duty  to  the  public:  Cotuila  v.  Kerr, 
Tex.,  1889. 
T  Wakley  v.  Cooke,  4  Ex.  511. 


2301 


DEFENSES. 


§1280 


purcluvscd 
lunty  corn- 
pecuniary 
ed  as  cora- 
olved,  that 
blic  neces- 
Lch  he  had 
\e  commis- 
the  vie\ver3 
rs,  but  that 
ssioners  for 
'  it  was  not 
hrough  the 
)us  journal- 
:1   recovered 

o  boys  had 

in  the  Frep 
daintitf  was 

lool  seemed 
|ut    conduct, 

;tion   iu  the 


school  for  the  last  seven  years,  and  that  the  plaintiff  had 
been  guilty  of  violent  conduct  towards  several   of  his 
sciiolars;'  or  of  a  charge  that  the  plaintiff  had  "  bolted," 
leaving  some  of  the  tradesmen  of  the  town  to  lament  the 
fashionable  character  of  his  entertainment,  that  he  had 
quitted  the  town  leaving  some  of  his  bills  unpaid;^  or  of 
a  charge  that  the  plaintiff  having  challenged  his  oppo- 
nent to  a  duel,  spent  the  whole  of  the  night  preceding  in 
practicing  with  his  pistol,  and  killed  his  opponent,  and 
was  therefore  guilty  of  murder,  that  the  plaintiff  had 
killed  his  opponent,  and  had  been  tried  for  murder;'  or 
of  a  charge  that  the  plaintiff  stole  the  defendant's  shingles, 
that  the  defendant  had  sold  the  plaintiff's  shingles  with- 
out \..'.^  authority,  and  afterwards  denied  that  he  knew 
anything  respecting  them;*  or  of  a  charge  that  he  had 
stolen  "  a  pot  and  waiter,"  that  the  plaintiff  stole  "  a 
waistcoat  pattern";®  or  of  a  charge  of  packing  a  jury, 
that  the  plaintiff  did  not  interfere  at  all  in  the  selection 
of  a  jury  impaneled  and  sworn,  but  only  conducted  im- 
properly the  selection  of  the  freeholders  to  be  placed  in 
the  jur^^-box;*  or  of  a  charge  of  being  "a  whore,"  that 
the  plaintiff  is  a  "reputed  thief,"  or  that  the  plaintiff  was 
reported  by  her  own  sister  to  be  a  whore;  ^  or  of  a  charge 
imputing  want  of  chastity  to  the  wife,  that  husband  and 
wife  lived  unhappily  tocrether;®  or  of  a  charge  that  the 
plaintiff  forged  a  bill  for  two  hundred  and  fifty  dollars, 
that  he  forged  one  for  eighty  dollars;^  or  of  a  charge  that 
plaintiff  stole  defendant's  corn,  tha'  the  plaintiff  planted 
corn  on  the  defendant's  land  on  shares,  the  crop  to  be 
divided  equally  in  the  ear,  that  the  plaintiff  fraudulently 
secreted  and  carried   away,  with  intent  to  convert  the 
same  to  his  own  use,  a  considerable  quantity  of  said  corn, 


'  Smith  V.  Parker,  13  Meos.   &  W. 
459. 
*  O'Brien  v.  Bryant,  16  Mees.  &  W. 


168. 


123. 


Helshamv.  Blackwood,  11  Com.  B. 


*  Shepard  v.  Merrill,  13  Johns.  475. 

*  Eastland  v.  Caldwell,  2  Bibb,  21. 
«  Mix  V.  Woodward,  12  Conn.  262. 
'  Smith  V.  Buckecker,  4  Rawle,  295. 
«  Anonymous,  1  Hill  (S.  V..),  251. 

■  Sliles  t'.  Comatock,  9  How.  Pr.  48. 


1280 


SLANDER  AND   LIBEL. 


2302 


without  the  knowledge  of  the  defendant;*  or  of  the 
charge  that  the  plaintiff  stole  a  dollar  from  A,  that  the 
plaintiff  had  stolen  a  dollar  from  B;''  or  of  a  charge  that 
"  the  scoundrel  was  indicted  at,  etc.,  for  fraud,"  that  the 
plaintiff  had  been  indicted  and  arrested  for  a  conspiracy 
to  cheat  and  defraud;'  or  of  a  charge  tha!  plaintiff",  her 
uncle's  housekeeper,  was  guilty  of  larceny,  that  she  openly 
gave  some  partly  worn  clothing  in  charity;*  or  of  a  charge 
that  plaintiff  (a  dramatic  author)  appropriated  a  play 
called  "  Flirtation,"  that  plaintiff  had  appropriated  a 
play  called  "Mock  Marriage";*  or  of  a  charge  that  a 
counselor  at  law  offered  himself  as  a  witness  in  order  to 
divulge  the  secrets  of  his  client,  that  he  disclosed  matter 
communicated  to  him  by  his  client  which  had  no  relation 
or  pertinency  to  the  cause  in  which  he  was  engaged;"  or 
of  a  charge  of  theft  against  the  plaintiff,  that  the  defend- 
ant  had  just  ground  for  believing  the  plaintiff  to  be  a 
very  dishonest  man/ 

Where  the  libel  consists  of  one  specific  charge,  and 
this  is  proved  true,  the  defendant  is  not  required  to  justify 
every  expression  which  ho  has  used  in  referring  to  that 
charge.®  So  if  it  is  substantially  proved,  a  mere  inac- 
curacy in  the  details  which  could  not  have  altered  the 
opinion  of  the  hearers,  or  made  any  different  impression 
on  them  than  the  real  truth  would  have  done,  will  not 
render  the  defendant  liable." 


1  Bisbey  v.  Shaw,  15  Barb.  578. 
•^  Self  V.  Garduer,  15  Mo.  480. 
^  Loveland  v.  Hosmer,  8  How.  Pr. 
215. 

*  Mielenz  v.  Quasdorf,  68  Iowa,  726. 

*  Daly  V.  Byrne,  1  Abb.  N.  C.  150. 
®  Riggs  V.  Denuiston,  3  Johns.  Caa. 

198;  2  Am.  Dec.  145. 

'  WoodruflF  V.  Richardson,  20  Conn. 
238. 

*  Odgers  on  Libel  and  Slander,  170. 

*  Odgers  on  Libel  and  Slander,  170. 
"  If  epitliets  or  terms  of  general  abuse 
be  used  which  do  not  add  to  the  sting 
of  the  charge,  they  need  not  be  justi- 
fied: Edwards  v.    Bell,  1   Bing.  403; 


Morrison  v.  Harmer,  3  Bing.  X.  C. 
767;  but  if  they  insinuate  some  fur- 
ther charge  in  addition  to  the  main 
imputation,  or  imply  some  tircuiu- 
stance  substantially  aggravating  such 
main  imputation,  then  they  must  be 
justified  as  well  as  the  rest:  Ilcldliam 
V.  Blackwood,  11  Com.  B,  li'O,  In 
such  a  case  it  will  be  a  quof^tiim  for 
the  jury  whether  the  substaiiue  of 
the  libelous  statemant  has  been  iiroved 
true  to  their  satisfaction,  or  whether 
the  fact  not  justified  amounts  to  a 
separate  charge  or  imputation  against 
the  plaintiff,  substantially  ilistinct 
from  the  main  charge  or  gist  of  the 


2303 


DEFENSES. 


§1280 


or   of  the 
L,  that  the 
harge  that 
,"  that  the 
conspiracy 
aintiff,  her 
she  openly 
of  a  charge 
ted  a  ph^y 
•opriated  a 
irge  that  a 
in  order  to 
)sed  matter 
no  relation 
agaged;''  or 
the  defend- 
atiff  to  he  a 


,  3  Bing.  N.  C, 
tiwate  some  fur- 
ion  to  the  iiiaia 
y  some  tircuiu- 
ig^ravatiiis  such 
ni  they  imist  be 
Hi  rest:  Hclsham 
oiu.  B.  1-^'J,  In 
jc  a  quostitm  for 
lie  substance  of 
t  has  been  l>rnved 
ction,  or  whether 
1(1  amounts  to  a 
iputatiou  against 
.autially  ihstmct 
ge  or  gist  of  tbs 


So  it  has  been  held  that  a  libel  which  professed  to 
expose  the  "  homicidal  tricks  of  these  impudent  and 
ignorant  scamps  who  had  the  audacity  to  pretend  to  cure 
all  diseases  with  one  kind  of  pill,"  and  asserted  that 
"several  of  the  rotgut  rascals  had  been  convicted  of  nian- 
slaughtei',  and  fined  and  imprisoned  for  killing  people 
with  enormous  doses  of  their  universal  vegetable  boluses," 
and  characterized  the  plaintiffs'  system  as  **  one  of  whole- 
sale poisoning,"  was  justified  by  proof"  that  the  plaintiffs' 
pills  when  taken  in  large  doses,  as  recommended  by  the 
plaintiffs,  were  highly  dangerous,  deadly,  and  poisonous," 
and  "that  two  persons  had  died  in  consequence  of  taking 
large  quantities  of  them;  and  that  the  people  who  had 
administered  these  pills  were  tried,  convicted,  and  im- 
prisoned for  the  manslaughter  of  these  two  persons," 
although  the  expressions  "  scamps,"  "  rascals,"  and 
"wholesale  poisoning"  had  not  been  fully  substantiated, 
the  main  charge  and  gist  of  the  libel  being  amply  sus- 
tained;* that  a  libel  published  by  a  railroad  company, to  the 
effect  that  the  plaintiff  had  been  convicted  of  riding  in 
a  train  for  which  his  ticket  was  not  available,  and  was 
sentenced  to  be  fined  one  pound,  or  to  three  weeks'  im- 
prisonment in  default  of  payment,  was  justified  by  proof 
that  he  had  been  so  convicted  and  fined  one  pound,  and 
sentenced  to  a  fortnight's  imprisonment  in  default  of 
payment,  as  the  error  could  not  have  made  any  differ- 
ence in  the  effect  which  the  notice  would  produce  on  the 
mind  of  the  public;'*  that  a  statement  that  plaintiff  is 
under  indictment  for  malversation  in  office  as  justice 
of  the  peace  is  justified  by  proof  of  a  prosecution  before 
a  justice  for  not  paying  over  an  assault-and -battery  fine 
collected  by  him  as  justice;'  a  statement  that  a  person  is  a 


libel,  or  at  least  atnounis  to  a  mate- 
rial aggravation  of  such  main  charge: 
Warniau  v.  Hine,  1  Jur.  820;  Weaver 
V.  Lloyd,  2  Barn.  &  C.  678;  Behrens  v. 
Allen,  3  Fost.  &  F.  135  ":  Odgers  on 
Libtil  and  Slander,  171. 


'  Morrison  v.  Harmer,  3  Bing.  N. 
C.  707;  4  Scott,  533. 

•^  Alexander  v.  R.  R.  Co.,  34  L.  J. 
Q.  B.  152;  6  Best  &  8.  340. 

'  Bailey  v.  Publishing  Co.,  40  Mich. 
251. 


§  1280 


BLANDER  AND   LIBEL. 


2304 


person  of  bad  moral  character,  and  unfit  to  have  charge 
of  a  school,  is  justified  by  showing  that  he  is  habitually 
profane  and  a  sabbath-breaker;*  a  justification  that  plain- 
tiff  had  had  sexual  intercourse  with  her  brother  is 
suflBcient  to  cover  a  charge  that  she  had  had  such  inter- 
course, and  was  pregnant  thereby;^  a  statement  that  a 
person  has  been  convicted  of  conspiracy  is  justified  by 
proving  such  conviction,  though  the  plaintiff  afterwards 
secured  a  new  trial  and  the  case  against  him  was  dis- 
missed.' 

A  publication  which  says  that  "  from  circumstantial 
evidence "  defendant  "  had  good  reason  to  believe,  and 
did  believe,"  plaintiff  to  be  guilty  of  a  certain  crime 
cannot  be  justified  by  proving  that  defendants  did  so 
believe,  or  had  good  reason  to  so  believe.  The  defendant 
must  prove  that  plaintiff  was  actually  guilty  of  the 
offense.*  So  where  the  libel  was  that  "  the  chief  owners 
[of  a  mine]  believe  they  have  been  outrageously  swin- 
dled," and  on  the  trial  the  defendant  offered  in  justifica- 
tion to  call  the  chief  owners  of  the  mine  to  prove  that 
they  did  believe  that  they  had  been  thus  swindled,  it 
was  held  that  the  evidence  was  properly  excluded.  In 
order  to  justify  the  publication,  the  defendant  should  have 
proved  that  the  owners  of  the  mine  had,  in  fact,  been 
swindled.^ 

But  though  a  partial  justification  is  no  defense,  it  is 
relevant,  and  may  be  shown  in  mitigation  of  damages." 
So  the  defendant  may  justify  as  to  one  part,  and  demur 
or  plead  privilege  to  the  rest,  or  deny  that  he  ever  spoke 
or  published  the  rest  of  the  words.  But  in  all  these 
cases  the  part  selected  must  be  severable  from  the  rest  so 
as  to  be  intelligible  hy  itself,  and  must  also  convey  a  dis- 


■  Wietnan  i'.  Mabee,  45  Mich.  484; 
40  Am.  Rop.  477. 

*  Edwards  v.  Knapp,  97  Mo. 
432. 

'  Booglier  v.  Knapp,  97  Mo.  122. 


*  Fountain  v.  West,  23  Iowa,  9;  92 
Am.  Dec.  406. 

6  Wilson  V.  Fitch,  41  Cal.  363. 

«  Burford  v.  Wible,  32  Pa.  St.  95; 
Moore  v.  Mauk,  3  111.  App.  114. 


2305 


DEFENSES. 


§  1280 


tinct  and  separate  imputation  against  the  plaintiff.*  "But 
though  a  plea  that  the  libelous  publication  is  true  con- 
stitutes a  complete  defense  if  proved,  it  is  a  deliberate 
reiisscrtion  of  the  original  charge,  and  estops  the  de- 
fendant from  showing  that  it  was  published  under  a 
mistake.''  Evidence  in  mitigation  of  damages  that  it 
was  the  general  opinion  that  the  facts  charged  w  ^i-e  true 
is  not  admissible,  unless  the  defendant  knew  such  to  be 
the  geneial  opinion,  and  relied  on  that  in  making  the 
charge.' 

It  is  no  defense  to  an  action  of  slander  that  the  defend- 
ant was  intoxicated  at  the  time  of  speaking  the  slan- 
(lerods  words.* 

Illustrations. — The  complaint  alleged  that  the  defendant 
accused  the  plaintiff  of  being  a  thief.  The  answer  admitted  the 
speaking  of  the  words,  but  denied  malice,  and  averred  that  he 
l)clicvcd  the  charge  to  be  true,  and  averred  that  the  defendant 
had  bought  a  farm  of  the  plaintiff,  and  that  the  plaintiff  after- 
wards unlawfully  entered  thereon  and  converted  certain  fixtures 
"  and  other  things  belonging  to  the  defendant,  by  reason  of  the 
piircliase  aforesaid,"  to  his  own  use.  Held,  not  a  defense: 
Tnmhlc  V.  Foster,  87  Mo.  49;  56  Am.  Rep.  440.  The  defendant 
imputed  to  the  plaintiff,  who  was  a  clergyman,  these  words: 
"Mr.  S.  said  the  blood  of  Christ  has  nothing  to  do  with  our 
salvation  more  than  the  blood  of  a  hog."  Held,  that  testimony 
tending  to  prove  that  the  plaintiff  denied  the  divinity  of  Christ 
and  the  doctrine  of  his  atonement,  and  said  he  was  a  created  be- 
ing, a  good  man  and  perfect,  his  death  that  of  a  martyr,  but  that 
there  was  no  more  virtue  in  his  blood  than  that  of  any  other 
creature,  was  not  admissible,  either  in  justification  or  mitiga- 
tion: thinner  v.  Grant,  12  Vt.  456.  A  newspaper  report  was 
headed  by  the  words,  "  Blackmailing  by  a  policeman,"  and 
stated  that  the  plaintiff,  who  was  a  policeman,  had  been  dis- 


'  McUregor  v.  Gregory,  1 1  Mees.  & 
W.  2S7;  Churchill  v.  Hunt,  2  Barn.  & 
Aid.  OS.j;  Roberta  v.  Browne,  10  Bine. 
51(1;  Biildulph  V.  Chamberlayne,  17  Q. 
B.  Ii")l,  The  complainant  alleged  the 
publication  of  the  defamatory  words 
by  .setting  out  separately  the  diflFerent 
portions  of  the  article  reflecting  on 
pkiintill.  Defendant  set  up  justifi- 
actiou  of  each  extract,  and  the  verdict 
for  plaintiff  was  general.  Held,  that 
146 


there  was  but  one  count,  and  that  the 
verdict  was  sustained  by  a  failure 
to  justify  any  one  of  the  extracts: 
Holmes  v.  Jones,  N.  Y.  Sup.  Ct.,  1889. 

»King  V.  Root,  4  Wend.  113;  21 
Am.  Dec.  102. 

'  Larrabee  v.  Minn.  Tribune  Co., 
36  Minn.  141. 

♦  Reed  v.  Harper,  25  Iowa,  87;  95 
Am.  Deo.  774. 


§  1281 


SLANDER  AND   LIBEL. 


2.']0G 


missetl  from  Lis  oSice  on  charges  of  blackmail.    It  appoarofl 
that  tlio  plaintiff  had  been  dismissed  for  accepting  voluntarv 
gifts  of  money  from  persons  to  whom  he  had  rendered  olliciiil 
services,  without  giving  notice  thereof  to  the  police  couiniis- 
sioners,  as  required  by  the  regulations  of  the  police  depart  nicnt 
IMd,  no  justification:  Edsall  v.  Brools,  2  Rob.  (N.  Y.)  29.     In  an 
action  for  slander,  defendant  pleaded  that  plaintiff  was  a  wo- 
man of  bad  reputation  for  chastity  in  the  neighborhood  of  a 
certain  summer  resort,  and   his  evidence  related  only  to  her 
reputation  in  that  neighborhood.     But  it  appearing  that  slio 
was  at  the  resort  only  a  few  weeks,  and  resided  in  a  noigli- 
boring   town  both  before  and  after  her  residence  there,  AcW, 
that  evidence  of  her  good  reputation  at  the  town  was  properly 
admitted  on  her  behalf:    Ilanners  v.  McClelland,  74  Iowa,  318. 
The  libel  complained  of  was  headed,  "  How  Lawyer  B.  troals 
his  clients,"  which  was  followed  by  a  report  of  a  casein  wliich 
one  client  of  B.  had  been  badly  treated.     Held,  that  though 
the  particular  case  was  true,  justification  was  not  sufiiciint  as 
to  the  heading,  which  implied  that  B.  generally  treated  his 
clients  badly:  Bishop  v.  Latimer.  4  L.  T.,  N.  S.,  775.    The  plaintiff, 
an  architect,  had  been  employed  by  a  certain  committee  to  bu- 
perintend  and  carry  out  the  restoration  of  Skirlaugh  Church. 
The  defendant,  who  had  no  manner  of  interest  in  the  question 
of  the  employment  of  plaintiff  to  execute  the  work,  wrote  a 
letter  to  a  member  of  the  committee,  saying:  ''I  see  that  the 
restoration  of  Skirlaugh  Church  has  fallen  into  the  hands  of  an 
architect  who  is  a  Wesleyan,  and  can  have  no  experience  in 
church  work.     Can  you  not  do  something  to  avert  the  irrepa- 
rable loss  which  must  be  caused  if  any  of  the  masonry  of  this 
ancient  gem  of  art  be  ignorantly  tampered  with?  "    In  an  action 
for  libel,  the  defendant,  by  way  of  justification,  alleged  "  that 
the  facts  contained  in  the  letter  are  true,  and  the  opinions 
expressed  in  it,  whether  right  or  wrong,  were  honestly  held  and 
expressed  by  the  defendant,"  and   "that  the  plaintiff  cannot 
show  experience  in  church  work,  i.  e.,  of  the  kind  which  in  the 
opinion  of  the  defendant  was  requisite."    Held,  that  the  justi- 
fication set  up  was  no  justification  at  all,  because  the  letter 
obviously  meant  that  the  plaintiff  could  show  no  experience  in 
the  work  in  which  he  had  been  employed  by  the  committee  to 
execute:  Botterillv.  Whytehead,  AIL. T^'N.S., 5SS.    In  an  action 
of  libel  for  accusing  the  plaintiff  of  a  criminal  offense,  tl)e  plain- 
tiff, to  rebut  evidence  of  justification,  offered  record  evidence  of  j 
his  acquittal  of  the  oflFense.     Held,  incompetent:  McBcc  v.  Ful- 
ton, 47  Md.  403;  28  Am.  Rep.  465. 

§  1281.     Privileged  Communications  —  Absolute  a 
Qualified  Privilege. — Under  certain  circumstances,  wordal 


as  t 

is  01 
eithl 

420. 


2307 


DEFENSES. 


§§  1282,1283 


[t  apponrofl 

g  voluntary 

ered  olVicial 

tco  counuis- 

tlcpartincnt. 

)  29.     In  an 

tf  was  a  wo- 

)orhoo(l  of  a 
only  to  lur 

ing  that  hIio 

[1  in  a  neiffli- 

e  there,  hdil 
was  vroptrly 
74  Iowa,  318. 

wyer  B.  treats 
case  in  which 

',  that  though 

)t  suilicicnt  as 

]y  treated  his 
The  plaintiff. 

,mniittec  to  bu- 

rlaugh  Church. 

in  the  question 
worV.,  wrote  a 

;» I  gee  that  the 

the  hands  of  an 

)  experience  in 

,vcrt  the  irrepa- 
masonry  of  this 
•  "    In  an  action 

p,  alleged  "thai 
id  the  opinions 
mostly  held  and 
plaintiff  eannot 
[nd  which  in  the 
n  that  the  justi- 
cause  the  letter 
no  experience  m, 
the  couiuiittee  to 
,88    In  an  action 
offense,  the  plain- 
ecord  evidence  0 

nt:  McDcev.m-' 


—  Absolute  a 
,iiistauces,word3| 


spoken  or  written  are  privileged,  and  no  action  lies  on 
their  account,  though  they  are  defamatory.    This  exemp- 
tion is  based  on  the  fact  that  the  speaker  or  writer  is  con- 
sidered to  have  published  them  under  a  legal  or  moral 
duty,  and  that  it  is  for  the  public  interest  that  he  shall 
not  be  prevented  from  so  doing  through  the  fear  of  hav- 
ing to  respond  in  damages  for  so  doing.     This  privilege 
is  cither  absolute  or  qualified.     It  is  absolute  where  the 
public  interest  or  the  administration  of  justice  requires 
it,  and  here  the  privilege  is  an  absolute  bar  to  any  action. 
It  is  qualified  in  a  variety  of  other  cases  where  the  pub- 
lication is  regarded  as  confidential.     In  the  first  class  of 
cases  an  action  will  not  lie,  even  though  the  publication 
was  false  and  malicious.     In  the  second  class,  an  action 
will  lie  if  the  words  were  not  used  bona  fide,  but  the  de- 
fendant availed  himself  of  the  privileged  occasion  will- 
fully and  knowingly  to  defame  the  plaintiff.     Whether 
the  communication  is  or  is  not  privileged  by  reason  of 
the  occasion  on  which  it  was  spoken  is  a  question  for  the 
court.^    If  the  circumstances  are  in  dispute,  this  must  be 
decided  by  the  jury.^ 

§  1282.    Absolute  Privilege  —  Executive  of  Nation  or 

State.  —  The  absolute  privilege  extends  to  the  President 
of  the  United  States,  and  the  governors  of  the  different 

states.^ 

§  1283.  Members  of  Legislative  Bodies. — Members  of 
the  legislature  —  of  either  house  of  Congress,  or  of  the 
state  legislature  —  are  absolutely  privileged  as  to  every- 
thing said  or  written  by  them  as  such.  And  the  question 
as  to  whether  the  publication  was  or  was  not  pertinent  to 
what  was  before  them  for  ofiicial  action  is  immaterial;  it 
is  enough  that  at  the  time  they  were  acting  as  legislators, 
either  in  the  house  of  which  they  were  members,  or  on 

ijiw^  «    «.«flRfi,    T.   B    o  T>   n         a  Stace  w.  Griffith,  L.  R.  2  P.  C.  420. 

»  Cooley  ou  Torts,  214. 


420. 


btace  M,  %iffith.  L.  E.  2  P.  C. 


§1284 


SLANDER  AND   LIBEl!.. 


2308 


ono  of  its  committees.'  Whether  a  like  privilege  attaclics 
to  inferior  bodies  possessing  legislative  functions,  sucli  as 
municipal  councils,  boards  of  supervisors,  etc.,  is  said  to 
be  not  so  clear.''  But  the  privilege  is  not  extended  to 
words  spoken  unofficially,  though  in  the  legislative  hull, 
and  while  the  legislature  is  in  session.' 

§  1284.  Witnesses  in  Judicial  Proceedings.  —  A  ^vit. 
ness  in  a  court  of  justice  or  judicial  proceeding  is  abso. 
lutely  protected  from  responsibility  for  words  spoken 
therein.*     Words  spoken  before  a  magistrate,  by  a  com. 


*  Coffin  V.  Coffin.  4  Mass.  1;  3  Am. 
Dec.  190;  State  v.  Buruham,  9  N.  H. 
34;  31  Am.  Dec.  217;  Perkins  v.  Mitch- 
ell, .SI  Barb.  461. 

'^  Judge  C'oolcy  is  of  opinion  that 
they  would  be  privileged  in  their  ut- 
terances when  pertinent  to  any  inquiry 
or  investigation  before  them,  but  no 
further:  Cooley  on  Torts,  214. 

*  Coffin  V.  Coffin,  4  Mass.  1 ;  3  Am. 
Dec.  189. 

*  Marsh  v.  Ellsworth,  50  N.  Y.  309; 
Smith  V.  Howard,  28  Iowa,  51;  Terry 
V.  Fellows,  21  La.  Ann.  375;  Garr  v. 
Scklen,  4  N.  Y.  91 ;  Bailey  v.  Dean,  5 
Barb.  297;  Vausse  v.  Lee,  1  Hill  (S.C), 
197;  2tj  Am.  Dec.  1G8;  Lea  v.  White, 
4  Sneed,  111;  Hutchinson  v.  Lewis,  75 
Ind.  55;  Steinecke  v.  Marx,  10  Mo. 
App.  580;  Liles  v.  Gaster,  42  Ohio  St. 
631;  Hoar  v.  Wood,  3  Met.  193;  Shaw, 
C.  J. ,  saying:  "  We  take  the  rule  to  be 
well  settled  by  the  authorities  that 
words  spoken  in  the  course  of  judicial 
proceedings,  though  they  are  such  as 
impute  crime  to  another,  and  there- 
fore if  spoken  elsewhere  would  import 
malice,  and  be  actionable  themselves, 
are  nr)t  actionable,  if  they  are  appli- 
cable and  pertinent  to  the  subject  of 
the  inquiry.  The  question,  therefore, 
in  such  cases  is,  not  whether  the  words 
spoken  are  true,  not  whether  they  are 
actionable  in  themselves,  but  whether 
they  were  spoken  in  the  course  of  ju- 
dicial proceedings,  and  whether  they 
are  relevant  or  pertinent  to  the  cause 
or  subject  of  the  inquiry.  And  in  de- 
termining what  is  pertinent  much 
latitude  must  be  allowed  to  the  judg- 
ment and  discretion  of  those  who  are 


intrusted  with  the  conduct  of  a  cause 
in  court,  and  a  much  larger  allowance 
made  for  the  ardent  and  excited  fuel- 
inga  with  which  a  party,  or  counsel 
who  naturally  and  almost  necessarily 
identities  himself  with  his  client,  may 
become  animated,  by  constantly  re- 
garding one  side  only  of  an  intun-stiu' 
and  animated  controversy,  in  wiwh. 
the  dearest  rights  of  such  party  may 
become  involved.     And  if  these  fell- 
ings sometimes  manifest  themselves  ia 
stronji;  invectives  or  exaggeratol  n- 
pressions,   beyond  what  the  ocLasii)a 
would  strictly  justify,  it  is  to  Ijo  re- 
collected that  this  is  said  to  a  jtnlge 
who  hears  both  sides,  in  whose  min.l 
the  exaggerated  statement  may  Loat 
once  controlled  and  met  by  eviJ.  :ice 
and  argument  of  a  contrary  tundeiicy 
from  the  other  party,  and  who,  hjin 
the  impartiality   of  his  position,  wiil 
naturally  give  to  an  exaggerated  asser- 
tion not  warranted  by  the  occasina  m 
more  weight  tlian  it  deserves.    Still, 
this  privilege  must  be  restrained  by 
some  limit,  and  we  consider  that  limit 
to   be   this:  that  a   party  or  i^imiiscl 
shall  not  avail  himself  of  his  sitnatioa 
to  gratify  jjrivate  malice  by  uttiim^ 
slanilerous  expressions,  either  against 
a    party,    witness,    or  third  pe.-sou, 
which  have  no  relation  to  tlit  cause 
or  subject-matter  of  the  inquiry,  ^iili- 
ject  to  this  restriction,  it  is,  on  tlie  j 
whole,    for  the  public  interest,  aiiJ 
best  calculated  to  subservu  the  [nir- 

f loses  of  justice,  to  allow  counsel  lal! 
reedom  of  speech  in  conducting  tlie  j 
causes  and  advocating  and  sustaining 
the  rights  of  their  constituents;  id 


2309 


DEFENSES. 


§1284 


plainant  who  has  caused  one's  arrest  for  a  crime,  after  the 
defendant  has  been  brought  in,  averring  the  truth  of  his 
complaint,  are  not  actionable.'  It  is  no  libel  for  a  witness 
callod  in  bankruptcy  proceedings  to  certify  that  the  bank- 
ru[)t  had  fraudulently  omitted  certain  property  in  making 
hi-!  inventory.''  Statements  made  by  witnesses  in  an 
affidavit  before  a  court  of  competent  jurisdiction,  in  a 
criminal  proceeding,  to  support  a  motion  for  a  new  trial, 
based  on  the  averment  of  newly  discovered  evidence,  are 
privileged,  if  applicable,  pertinent,  and  material  to  the 
subject  before  the  court,  even  though  false  and  malicious.' 
An  investigation  by  a  captain  on  board  a  vessel  is  not 
such  a  judicial  inquiry  as  protects  persons  testifying 
thereat  from  responsibility  for  false  and  slanderous  ut- 
terances.'* What  a  witness  says  in  testimony  is  privi- 
leged, even  if  the  court  attempted  to  stop  him,  provided  he 
had  a  right  to  say  it  as  an  explanatory  part  of  an  answer 
he  had  made.®  But  the  words,  "That  is  a  lie,"  spoken  to 
a  witness  while  testifying  to  a  material  point  in  a  cause 
then  on  trial,  are  actionable,  if  spoken  by  a  party  mali- 
ciously, and  with  intent  to  defame  such  witness." 

But  the  matter  must  be  pertinent  and  material  to  the 
cause  or  subject-matter  of  the  inquiry.'  If  a  witness, 
while  testifying  in  court,  goes  out  of  his  way  to  utter  a 
slander,  his  privilege  does  not  protect  him.®    In  the  ab- 


this  freedom  of  discussion  ought  not 
to  be  impaired  by  numerous  and  re- 
Hueil  distinctions."  See  Hastings  v. 
Lusk,  2-2  Wend.  410;  34  Am.  Dec. 
3oO.  After  the  examination  and  ac- 
quittal of  the  plaintiff,  the  defendant 
repeated  the  charge  and  urged  its 
truth  to  several  persons  who  were 
present  at  the  examination.  Held, 
slander,  and  that  it  was  not  excused 
because  spoken  to  persons  who  were 
so  prti.seut:  Burlingame  v.  Burling- 
arae,  8  Cow.  141. 

'  Allen  V.  Crofoot,  2  Wend.  515;  20 
Am.  Dec.  647. 

''  Marsh  v.  Ellsworth,  50  N.  Y.  309. 

'Burke  v.  Eyau,  36  La.  Ann.  951. 


*  Webber  v.  Webber,  Sup.  Ct.  N,  S. 
Wales,  1884;  1  Aust.  W.  N.  C.  1. 

"  Seaman  v.  Netherclift,  L.  R.  1 
Com.  P.  Div.  540;  L.  R.  2  Com.  P. 
Div.  53. 

8  Mower  v.  Watson,  11  Vt.  53C;  34 
Am.  Dec.  704. 

■>  Hoar'w.  VS^ood,  3  Met.  19.S;  White 
V.  Carroll,  42  N.  Y.  ICl;  1  Am.  Rep. 
504;  Calkins  v.  Sumner,  13  Wis.  193; 
80  Am.  Dec.  738;  Kidder  v.  Park- 
hurst,  3  Allen,  393;  Smith  v.  Howard, 
28  Iowa,  51;  Barnes  v.  McCrate,  32 
Me.  442;  Warner  v.  Paine,  2  Sand. 
195;  Marsh  v.  Ellsworth,  2  Sweeny, 
689;  Wyatt  v.  Buell,  47  Cal.  624. 

8  Sbadden  v.  McElwee,  86  Tenn.  146. 


g'1285 


SLAJJDER    AND   LIBEL. 


2C10 


sence  of  an  averment  to  the  contrary,  the  court  would 
prrcsunio  that  the  answers  were  pertinent  to  the  jssuo, 
believed  to  bo  true,  and  so  privileged.'  A  witness  is  not 
answerable  for  any  statements  ho  may  make  respoiisivo 
to  questions  put  to  him,  and  which  are  not  objected  to 
and  ruled  out  by  the  court;  or  concerning  the  iinixrti- 
nency  or  impropriety  of  whicli  ho  receives  no  advice  IVoin 
the  court  or  tribunal  before  which  the  proceeding  is  liiid,- 
It  is  a  question  for  the  jury  whether  answers  given  hy  a 
person  in  the  course  of  his  testimony  as  a  witness,  and 
claimed  to  be  slanderous,  were  so  given  under  the  beiii.f 
til  at  they  were  pertinent  and  relevant  to  the  question  at 
issue,  or  from  malice.' 

§  1285.  Judges. —  A  judge  has  an  absolute  immunity, 
and  no  action  can  be  maintained  against  him,  oven 
though  it  be  alleged  that  he  spoke  maliciously,  knowing 
his  words  to  bo  false,  and  also  that  his  words  were  irrele- 
vant to  the  matter  at  issue  before  him,  and  wliolly 
unwarranted  by  the  evidence.*  And  this  immunity  ex- 
tends to  a  judge  of  an  inferior  court,  or  a  magistrate,  so 
long  as  he  has  jurisdiction  over  the  matter  in  which  the 
words  are  spoken.^ 

Illustrations.  —  A  judge,  while  sitting  in  court  and  ti^-in? 
an  action  in  which  the  plaintiff  was  defendant,  said  to  him; 
"You  are  a  harpy,  preying  on  the  vitals  of  the  poor."  The 
plaintiff  was  an  accountant  and  scrivener.  Held,  that  no 
action  lay  for  words  so  spoken  by  the  defendant  in  his  capacity 
as  judge,  although  they  were  alleged  to  have  been  spoken  falsely 
and  maliciously,  and  without  any  reasonable  or  probable 
cause,  or  any  foundation  whatever,  and  to  have  been  wholly 
irrelevant  to  the  case  before  him :  Scott  v.  Stansfiehl,  L.  K.  3 
Ex.  220.  A  justice  of  the  peace,  in  response  to  an  order  of  the 
county  court  in  an  appealed  case,  made  an  amended  return,  and 
stated  therein  that  plaintiff  had  slipped  a  bogus  answer  among 

^  Lilea  v.  Gaster,  42  Ohio  St.  63L  *  Odgera  on  Libel  and  Slander,  ISS; 

*  Calkins  v.  Sumner,  13  Wis.  193;  Miller  v.  Hope,  2  Shaw,  125. 

81  Am.  Dec.  738.  »  Houlden  v.  Smith,  14  Q.  B.  841; 

»  White  V.  Carroll,  42  N.  Y.  161;  1  Paria  v.   Levy,   9    Com.   B.,  N.  S., 

J^.  Rep.  603.  342. 


2311 


DEFENSBS. 


gi  128G,  1287 


tho  papers  in  the  case.  Upon  a  suit  for  libel,  hrJd,  that  the 
communication  ^vas  material  and  pertinent,  and  tliereforo 
j)riviloged,  irrespective  of  motive:  Aylesworth  v.  ISL  John,  25 
Hun,  15G. 

§  1286.  Jurors. — So  the  consultation  of  jurors  in  the 
jury-room  is  privileged/  and  such  privilege  is  not  lim- 
ited to  words  which  are  shown  to  be  pertinent  to  the 
questions  arising  for  decision.^  Any  observation  made 
by  one  of  the  jury  during  the  trial  is  equally  privileged, 
provided  it  is  pertinent  to  the  inquiry,'  and  so  is  any 
presentment  by  a  grand  jury.* 

§  1287.     Pleadings    and    Papers    in    Cause.  —  The 

pleadings  and  other  papers  filed  by  parties  in  the  course 
of  judicial  proceedings  are  privileged.'     A  bill  in  chan- 


'  Dunham  v.  Powers,  42  Vt.  1 ;  Rec- 
tor r.  Smith,  1 1  Iowa,  302. 

^  l)imhaii\  V.  Powers,  42  Vt.  1. 

'  11.  V.  Skinner,  Lofft,  55. 

•Koctorr.  Smith,  11  Iowa,  302. 

*  Astley »».  Younge,  2  Burr.  807;  Hen- 
ilerson  r.  Bruomheatl,  4  Hurl.  &  N.  570; 
Wyatt  V.  Buell,  47  Cal.  024;  Vauaso  v. 
Lee,  1  Hill  (S.  C.)  197;  20  Am.  Dec.  108; 
Leac.  White,  4  Sneed,  111;  Garrv.  Sul- 
duii,  4  N.  Y.  91 ;  Hardin  v.  Cumstock, 
2  A.  K.  Marsli.  480;  12  Am.  Dec.  427; 
Spaids  V.  Barrett,  57  111.289;  11  Am. 
Rei).  10;  ytrauss  v.  Meyer,  48  111. 
3S5;  Lanniiig  v.  Christie,  30  OlJo  St. 
Ho;  27  Am.  Kep.  431;  Gilbert  v. 
Peoplo,  1  Denio,  41;  43  Am.  Dec.  040; 
McLauglilin  r.  Cowley,  127  Mass.  310; 
131  Mass.  70;  Lawson  v.  Hicks,  38 
Al, .  270;  81  Am.  Dec.  49.  In  an  old 
case  "it  was  adjudged  that  if  one 
exlii!>its  articles  to  justices  of  peace 
against  a  certain  person,  containing 
divors  groat  abuses  and  misdemeanors, 
not  only  concerning  the  petitioners 
thoinselves,  but  many  others,  and  all 
this  to  the  intent  that  ho  should  be 
boiiml  to  his  good  behavior, — in  this 
case  the  party  accused  shall  not  have, 
for  any  matter  contained  in  such 
article<j,  any  action  upon  the  case;  for 
tliuy  liave  pursued  tho  ordinary  course 
of  justice  in  such  case;  and  if  actions 
shovdd  be  permitted  in  such  cases, 
those  who  have  just  cause  of  com- 


plaint would  not  dare  to  complain  for 
fear  of  infinite  vexiitiou  "  :  Cutler  v. 
Dixon,  4  Coke,  14  b;  Dytr,  285. 
In  the  report  of  auotlier  old  case 
it  is  said:  "If  one  bring  another 
before  a  justice  of  peace  for  supposi- 
tion of  felony  without  any  just 
cause,  yet  no  action  lies;  and  if  ono 
exhibit  a  scandalous  bill,  if  ilio  court 
have  jurisdiction  of  suoli  matters,  an 
action  lies  not;  otherwise,  it  is  if  the 
court  have  not  jurisdiction;  or  having, 
if  tho  party  publish  his  bill  abroad, 
the  said  bill  being  false  "  :  Weston  i\ 
Dobniet,  Cro.  Jac.  432.  This,  so  far 
as  it  denies  an  action  for  the  malicious 
prosecution  of  a  criminal  charge,  ia 
not  the  modern  law.  It  is  biiil  down 
by  Mr.  Sergeant  Hawkins  th  it,  "no 
false  or  scandalous  matter  contained 
in  a  petition  to  a  cotninittee  of  I'arlia- 
ment,  or  in  articles  of  tlic  peace 
exhibited  to  justices,  or  in  any  other 
proceeding  in  a  regular  course  of  jus- 
tice, will  make  the  compliiint  amount 
to  a  libel " :  1  Hawk.  P.  C,  c.  28, 
sec.  8.  But  an  action  lies  where  an 
affidavit  is  sworn  to  recklessly  and 
maliciously  before  a  court  having  no 

i'urisdiction  in  the  matter:  Odgers  on 
^ibcl  and  Slander,  192;  citing  Brick- 
ley  V.  Wood,  4  Rep.  14;  R.  v.  Salis- 
bury, 1  Ld.  Raym.  341;  Lewis  v. 
Levy,  3  El.  B.  &  E.  554. 


§  1287 


SLANDER  AND   LIBEL. 


2:',v^ 


eery  prepared  by  connsol  and   sworn  to,  but  never  fihnl, 
is  j)rivilege(l.'     So  aro  statements  made  in  support  of  an 
answer  to  bo  used  in  opposition  to  an  application  for  an 
injunction,  provided  they  aro  not  irrelevant  and  impor- 
tineiit,'*     So  a  defendant  in  a  libel  suit  cannot  be  sued  for 
a  libel  based  on  allegations  in  his  answer  properly  pleaded 
by  way  of  justification    and  mitigation.'     So  a  motion 
based  on  the    Iowa  code,  section  2006,  for  an  order  to  an 
attorney  to  pay  over  money  to  his  client,  and  containing 
only  the  essential  facts  entitling  plaintiff  to   the    roliof 
asked,    is   privileged.*     Averments   in    a   petition    by  a 
receiver  against  his  co-receiver  in  a  judicial  proceeding, 
that  such  co-receiver  was  unlawfully  and  wrongfully  with- 
holding  a  portion  of  the  assets;  that  ho  was  obstructing 
their  collection;  was  acting  in  contempt  of  the  authority 
of  the  court;  and  had  embezzled  some  of  the  money  be- 
longing  to   the   trust,  —  although  false,  and  maliciously 
made,  —  will  not  sustain  an  action  for  libel,  for  the  rea- 
son  that    every  averment   of   the  petition    did    have  a 
most  direct    relation    to  the  subject-matter  brought  be- 
fore the  court  under  the  petition.     A  declaration  ,'iver. 
ring   that  the  defendant  maliciously  made    use    of  the 
process  of  the  court  by  causing  a    petition  to  be  filed 
in  said   court,  for  the  purpose  of  having  the  plaintiff 
declared  in  contempt  of   court,  and  removed  from  his 


'  Burnham  v.  Roberts,  70  111.  19. 

■•'  lu  a  recent  case  a  bill  had  been 
filed  by  a  mortgagor  to  reform  the 
mortgage,  and  tlio  bill  charged  an 
agent  of  the  mortgagee  with  fraud  in 
cionnectiou  with  the  draughting  of  the 
mortgage  by  inserting  a  provision 
that  the  mortgagors  should  keep  the 
buildings  insurecT.  They  failing  to  do 
this,  the  mortgagee  procured  insur- 
ance, and  commenced  foreclosure  by 
advertisement  for  the  sums  paid  to 
obtain  it,  in  accordance  with  the  pro- 
vision in  controversy,  whereupon  the 
bill  mentioned  was  filed.  The  agent 
made  his  affidavit  in  support  of  the 
answer,  and  averred  therein  that  the 


charge  of  fraud  was  willfully  and  mali- 
ciously false,  without  tin'  ]f\J  'mdnw 
of  truth  whatev' >-.  T  .vrtsli'iM  mt 
anactionontlii'^'  s  a  libel  would 

not  lie;  that  i.s  said  was  o-"- 

tainly  not  ir  it,  for  it  eonncr 

the  very  sub.>  oe  of  the  controv  1 1  -y 
between  the paitH's;  and  iliat,  though 
epithets  were  used  whi  ii  were  need- 
less, and  added  no  foi\e  to  iiio  state- 
ments, the  privilege  was  not  vitiated 
by  the  excess :  Hart  v.  Baxter,  47 
Mich.  198. 

3  Prescott  V.  Tousey,  53  N.  Y.  Sup. 
Ct.  56. 

*  Hawk  V.  Evans,  Iowa,  1889. 


2313 


DEFENSES. 


1287 


ofllco  of  roooivor,  and  to  disgrace  liim  in  the  cyos  of 
another,  and  that  the  allegations  in  said  petition  wero 
false  to  the  knowledge  of  the  defendant,  and  that  therchy 
the  pkiintiir  was  greatly  injured  in  his  feelings,  reputa- 
tion, and  business,  —  does  not  show  u  sufficient  cause  of 
aft  ion  for  the  malicious  abuse  of  the  process  of  tho 
court.'  So  affidavits  made  for  commencing  proceedings 
before  magistrates,  and  tho  preliminary  proceedings  and 
information  taken  or  given  for  bringing  supposed  guilty 
piirtios  to  justice,  are  privileged.^ 

The  rule  applies  not  merely  to  the  trials  of  actions  and 
indictments,  but  includes  every  proceeding  before  a  cora- 
potent  court  or  magistrate,  in  due  course  of  law,  which  is 
to  result  in  a  decision.  It  includes  a  complaint  to  tho 
fire  marshal  of  a  municipal  corporation,  the  design  of 
which  is  to  cause  him  to  institute  an  inquiry  as  to  the 
cause  of  a  fire.^  It  applies  to  judicatories  which  persons 
may  erect  for  themselves  by  their  voluntary  action,  as  well 
as  to  those  established  for  the  administration  of  justice  by 
tho  law  of  tho  land,  as,  for  example,  church  courts.*  But 
the  court  must  be  legally  competent  to  investigate  the 
charges.^  And  scandalous  matter  which  is  wholly  imper- 
tinent to  tho  subject  of  the  action  is  not  entitled  to  the 
privilege.  Where  one  acting  as  counsel  for  the  pUiintifiE 
in  a  justice's  court  prepared  and  filed  a  declaration,  in 
an  action  for  trespass  for  breaking  the  plaintiff's  close, 
and  otherwise  injuring  his  sheep,  in  which,  among  other 
provoking  expressions  concerning  the  defendant,  he  in- 
serted allegations  that  "  the  defendant  was  reputed  to  be 
fond  of  sheep,  bucks  and  ewes,  and  of  wool,  mutton,  and 
lambs,"  and  to  be  in  the  habit  of  "  biting  sheep,"  and 

*  Bartlctt  V.  Chriathilf,  G9  Md.  219.     upon    which     a    search-warrant    for 
AUou  V.  Crofoot,  2  Wend.  515;  20    stolea  goods  is  issued  are  not  action 


A#.  l)(;e.  G47;  Hartsock  v.  Reddick, 
C  Blackf.  255;  38  Am.  Dec.  141; 
Brijr.s  ,'.  Byrd,  12  .Ired.  377;  Worth- 


wgtou  V.  8oiibner,  109  Mass.  487;  12    Pr.  360. 


able:  Vausse  v.  Lee,    1  Hill,   197;   26 
Am.  Dec.  1G8. 
*  Newfiold  v.   Cofferman,   15   Abb. 


Am.   Rep.  736;  Eames  v.  Whittaker, 
12o  .Mass.  342.     Words  in  au  affidavit 


«  McMillan  v.  Birch,  1  Binn.  178. 
^  Milam  V.  Burosides,  1  Brev.  295. 


§1288 


SLANDEIl  AND   LIDEL. 


2314 


added  tha-  "  if  guilty,  he  ought  to  be  hanged  or  shot "  — 
it  was  held  tliat  an  indictment  charging  such  matter  ag 
libelous,  and  alleging  malice,  was  good  on  demurrer,  be- 
cause the  matter  could  not  be  regarded  as  portinent  to 
the  subject  of  the  inquiry.* 

Hence  where  the  words  are  material  and  p3rtinent  to 
the  judicial  or  quasi  judicial  injury,  and  therefore  abso- 
lutcly  privileged,  the  truth  or  falsity  of  them  is  imma- 
terial, and  cannot  be  drawn  in  question  in  an  action  for 
slander  or  libel;  nor  is  it  necessary  in  such  an  action  for 
the  defendant  to  deny  the  allegation  of  malice.^  Where 
the  privilege  exists,  the  motive  with  which  the  worda 
were  uttered  is  an  immaterial  inquiry.' 

Illustrations.  —  Stockholders  of  a  corporation  filed  a  peti- 
tion in  a  court  having  jurisdiction  of  the  cause  against  the 
corporation,  alleging  that  the  president,  with  the  approvnl  of 
the  directors,  had  been  fraudulently  conducting  the  managiMuent 
of  the  company,  detailing  the  acts  alleged  to  show  a  concortod 
scheme  to  reduce  the  value  of  the  company's  stock,  and  buy  it 
in,  and  control  the  company's  affairs,  and  thus  destroy  the 
plaintiff's  interests,  and  asked  for  the  appointment  of  a  re- 
ceiver. Held,  that  a  director  of  the  company,  though  not  a 
party  to  the  suit,  could  not  maintain  an  action  for  aliof;od 
defamatory  matter  contained  in  the  petition,  though  it  was  false 
and  malicious,  and  made  under  color  and  pretece  of  a  suit 
without  right:  Runge  v.  Franklin,  Tex.  1889. 

§  1288.  Counsel  ayx-X  Attorney.  —  And  counsel  enga^^ed 
in  a  case  have  a  similar  protection.*     An  attorney  who 


'  Gilbert  v.  People,  1  Denio,  41,  the 
court  saying:  "  The  words  o<hi1(1  have 
no  possihlo  bearing  on  the  issue  to  bo 
tried,  or  the  dainaires  which  might  be 
assessed  for  the  alleged  trespass,  al- 
though th'jy  might  very  well  servo  to 
irritate  and  disgrace  the  party  who 
was  cliargod  to  be  the  subject  of  such 
reports  and  habits.  It  would  be  la- 
men  taljle  if  irrelevant,  gratuitous,  and 
malicious  attacks  could  bo  excused, 
because  inserted  in  the  declaration 
upon  other  and  distinct  causes  of  ac- 
tion, and  with  which  the  vituperative 
charges  had  no  counectiou  whatever." 


«  Garr  v.  Selden,  4  N.  Y.  91;  Hast- 
ings V.  Lusk,  22  Wend.  410;  lU  Am 
Dec.  330;  Hoar  v.  Wood,  3  Met.  I'J3, 
197. 

»  Marsh  i>.  Ellsworth,  50  N.  Y.  W; 
Gill)ert  v.  People,  1  Denio,  41;  King 
V.  Wheeler,  7  Cow.  725. 

*  See  ante,  title  Agency —  Attorney 
and  Client;  Maulsby  r.  Kcit'siiiler, 
69  Md.  143.  "Neither  party,  -.vit- 
ness,  counsel,  jury,  nor  judgo  ran  l)e 
put  to  answer  civilly  or  criiuiually  for 
words  spoken  in  office  ":  Lord  iUua- 
field  iu  li.  V.  Skiuaer,  Lofi't.  5o. 


'    y 


2314 


2315 


DEFENSES. 


§1289 


.r  shot "  — 

matter  as 

[nurrer,  be- 

►crtinent  to 

.3rtinent  to 
•efore  abso- 
m  is  imma- 
1  action  for 
a  action  for 
ce.^  Where 
b  the  words 


I  filed  a  pcti- 
3  against  the 
le  approviil  of 
;  management 
y  a  concerted 
jk,  and  buy  it 
8  destroy  the 
ment  of  a  re- 
though  not  a 
m  for  allowed 
gh  it  was  false 
^ec^e  of  a  suit 


msel  engaged 
attorney  who 

N.  Y.  91;  TTast- 
11(1.  410;  :U  Ai" 

th,  50  N.  Y.  W; 
Deuio,  '11;  Kmg 
725. 

^eiicy  —  Attorney 
jy  t\  rvcit'.-iii.lcr, 
ither  v:irty,  '.vit- 
uor  juilgi!  I'lm  )'e 
r  or  crimiually  tor 
ce":  Lui-.l  Mau3' 
r,  Lofft.  5o. 


files  specifications  of  opposition  to  an  insolvent's  dis- 
charge, alleging  that  the  insolvent  liad  been  privy  to 
false  and  fraudulent  entries  in  his  books,  had  sworn 
falsely  in  relation  to  his  estate,  and,  in  a  fiduciary  capa- 
city, had  fraudulently  converted  property  to  his  own  use, 
which  information  he  had  derived  from  his  client,  is  not 
liable  to  an  action.* 

§  1289.  Military  Courts.  —  Defamatory  communica- 
tions made  by  witnesses  or  officials  to  a  court-martial,  or 
to  a  court  of  inquiry  instituted  under  articles  of  war,  are 
absolutely  privileged.'^ 


1  IloUis  V.  Meux,  69  Cal.  625;   58 
Am.  Kep.  574-. 

■'  Kcighloy  V.  Bell,  4  Post.  &  F.  703; 
Dawkins  v.  Lord  llokeby,  L.  R.  8  Q. 
B.  '2."ir>;  42  L.  J.  Q.  B.  03;  7  H.  L.  Cas. 
744.  la  this  case  —  a  leading  one  on  the 
subject  —  the  facts  of  the  case  were 
as  fi)llow.s:  The  plaintiff,  Lieutenant- 
C'oloiul  Dawkins,  having  been  re- 
pnrtud  to  have  exhibited  on  several 
OLca.sions  a  want  of  deference  to  sonic 
of  his  superior  officers,  and  to  have 
bien  guilty  of  other  unotficer-like  con- 
duct, and  also  to  liave  made  certain 
charj;cs  against  several  tti  his  brother 
ofliccrs,  the  commander  in  chief  di- 
rected tliat  a  court  of  inquiry  should 
be  assembled;  and  that  these  matters 
should  be  inquired  into  and  reported 
upon.  A  court  of  inquiry  wns  held, 
and  Lord  Rokeby  was  requirc(  to  at- 
tcuil,  and  did  accordingly  attenti  as  a 
witness  before  this  court.  J  i  the 
course  of  his  I'iva  voce  evidence  before 
that  court,  Lord  Rokeby  made  serious 
charges  against  the  plaintiff.  On  the 
trial  llic  question  arose,  whether  an 
action  will  lie  against  a  military  man 
fur  statements  made  by  him  in  the 
course  of  a  military  inquiry  in  relation 
to  the  conduct  of  the  plaintiff,  also  a 
military  man,  and  with  reference  to 
tlic  sultject  of  the  inquiry,  where  the 
plaintiff  shall  have  proved  that  the 
dcieuilant  has  acted  tmilajidc  and  with 
actual  malice,  and  without  any  reason- 
able and  probable  cause,  and  with  a 
knowledge  that  the  statements  so 
made  by  bim  are  false.     Mr.  Justice 


Blackburn  ruled  that  no  such  action 
would  lie,  and  the  court  of  exchequer 
chamber  supported  his  decision.  On 
appeal  to  the  house  of  lord.s,  this 
ruling  was  sustained,  after  lengthy 
and  elaborate  arguments,  the  lord 
chancellor  saying:  "A  long  series  of 
decisions  has  settled  that  no  action 
will  lie  against  a  witness  for  what  he 
says  or  v/rites  in  giving  evidence  be- 
fore a  court  of  justice.  This  does  not 
proceed  on  the  ground  that  the  occa- 
sion rebuts  the  prima  facie  presump- 
tion that  words  disparaging  to  another 
are  maliciou.sly  spoken  or  written.  If 
this  were  all,  evidence  of  express 
malice  would  remove  this  ground. 
But  the  principle,  we  apprehend,  is, 
that  public  ijoiicy  requires  that  wit- 
nesses should  give  their  testimony 
free  from  any  fear  of  being  harassed 
by  an  action  on  an  allegation,  whether 
true  or  false,  that  t'aoy  acted  from 
malice.  The  authorities,  as  regards 
witnesses  in  the  ordinary  courts  of 
justice,  are  numerous  an<l  uniform. 
In  the  present  caso  it  appears  in  the 
bill  of  exceptions  that  the  words  and 
writings  complained  of  were  published 
by  the  defendant,  a  miliiary  man 
bound  to  appear  and  give  testimony 
before  a  court  of  inquiry.  All  ho  said 
and  wrote  had  reference  to  that  in- 
quiry, and  we  can  see  no  reason  why 
public  policy  should  not  e<pially  pre- 
vent an  action  being  brouglit  against 
such  a  witness  as  again.ifc  one  giving 
evidence  in  an  ordinary  court  of  jus* 
tice." 


§1290 


SLANDER   AND   LIBEL. 


231G 


§  1290.     Qualified  Privilege  —  Duty  to  Society.  — A 

qualified  privilege  attaches  to  a  communication  made  by 
a  person  to  another  in  pursuance  of  a  duty  to  society,  and 
it  is  sufficient  that  the  defendant  should  honestly  believe 
that  he  has  a  duty  to  perform  in  the  matter,  although  it 
may  turn  out  that  the  circumstances  were  not  such  as  ho 
reasonably  concluded  them  to  be.*  It  is  then  privileged, 
unless  express  malice  is  shown.''  But  it  is  essential  that  the 
defendant  should  honestly  believe  his  statement  to  be  true;^ 
and  the  communication  must  be  made  at  a  proper  time  and 
in  a  proper  manner.*  A  communication  privileged  as  be- 
tween the  sender  and  the  receiver  may  lose  the  privilege  if 
sent  unnecessarily  by  postal  card  or  telegram.^  Although 
a  letter  be  written  in  good  faith,  as  a  confidential  com- 
munication,  for  the  purpose  of  obtaining  information  to 
which  the  writer  is  properly  entitled,  yet  if  it  contain 
comments  of  a  slanderous  nature,  referring  to  an  indi- 


*  Wliitelcy  v.  Adams,  15  Com.  B., 
N.  S.,  3i}2;  Jariii<raii  v.  Fleming,  43 
Miss.  710;  5  Am.  Kop.  514. 

^  Faii:i  t:  Starke,  9  Dana,  128;  33 
Am.  Deo.  5;W;  Hart  v.  Reed,  1  B. 
Mou.  lOli;  33  Am.  Dec.  179;  Holt  v. 
Parsioiis,  23  Tex.  9;  7a  Am.  Deo.  49; 
Mooro  V.  Butler,  4S  N.  H.  IGl.  Mere 
Bourecy  in  a  communication  is  not  suf- 
ficient to  remove  the  implication  of 
malice;  but  taken  in  connection  with 
other  eireumstauoes,  it  may  confirm 
the  inference  that  it  was  done  from  a 
good  motive:  Paris  v.  Starke,  9  Dana, 
128;  33  Am.  Dec.  536. 

*  "To  entitle  matter  otherwise  libel- 
ous to  the  protection  which  attaches 
to  comnmuieations  made  in  the  ful- 
fillment of  a  duty  hona  Jides,  or  to  use 
our  own  equivalent,  honesty  of  pur- 
pose, is  essential;  and  to  tliis,  again, 
two  thinjis  are  necessary:  1.  That  the 
coniiuuuication  be  made  not  merely  in 
the  course  of  duty,  that  is,  on  an  oc- 
casion which  would  justify  the  making 
it,  but  also  from  a  sense  of  duty;  2. 
That  it  be  made  with  a  b'-lief  of  its 
truth  ":  Cockburn,  C.  J.,  in  Dawkins 
V.  Lord  Paulet,  L.  R.  5  Q.  B.  102. 

*  Holt  V.  Parsons,  23  Tex.  9;  76  Am. 


Dec.  49.     "Even  where  the  expres- 
sions employed  are  allowa))le  in  all 
respects,  still  the  mode  of  puljlieaticni 
may  take  them  out  of  the  priviltgf. 
Confidential  communications    slidukl 
not  bo  shoutpd  across  the  street  lor 
all  passers-by   to   hear.     Nor   .shimlil 
they  be  committed  to  a  post  card  or 
a  telegram   which    others   will    ic;iil. 
They  siiould  be  sent  in  a  letter  prnp. 
crly    sealed    and    fastened.      If    the 
words  be  spoken,  the  defendant  iiiiiat 
be  careful  iu  whose  presence  ho  spoaks. 
He  shoulel  choose  a  time  wlien  jki  one 
else  is  by  except  those  to  wlioni  it  is 
his  duty  to  make  the  statoiiR'ut.    It 
is  true  that  the  accidental  prosciicc  of 
some  third  person,  unsouglit  liy  the 
defendant,  will  not  take  the  case  out 
of  the  privilege;  but  it  woidd  lioothei'- 
wise  if  the  defendant  purposely  sought 
an  opportunity  of  making  a  coinnmui- 
cation  'prima  facte  privileged   in  the 
presence  of  the  very  persons  who  were 
most  likely  to  act  upon  it  to  tlie  pre- 
ju<lice  of  the  plaintiff":     Odgers  on 
Libel  and  Slander,  200. 

^  Williamson  v.  Freer,  L.  R.  9  Com. 
P.  393;  10  Moak,  223. 


2317 


DEFENSES. 


§1291 


vidual  concerning  whom  no  information  WC3  expected  or 
desired,  and  foreign  to  the  avowed  object  for  which  it  was 
written,  it  is  libelous.'  And  it  must  be  made  to  a  proper 
person.  A  statement  that  a  person  is  fit  for  a  lunatic 
asylum  is  none  the  less  libelous  because  the  statement  is 
made  by  a  physician  as  his  professional  opinion,  it  not 
being  made  to  a  person  to  whom  it  was  his  duty  to  make 
it."  So  a  statement  made  by  a  physician  that  an  unmar- 
ried female  patient  is  pregnant  is  not  a  privileged  com- 
munication, unless  it  be  made  in  good  faith  to  one  who 
is  reasonably  entitled  to  receive  the  information.^  But 
it  does  not  necessarily  lose  its  privilege  by  being  made 
in  the  presence  of  a  tliird  person.*  If  one  writes  a  letter 
containing  defamatory  statements  to  one  who  has  an  in- 
terest therein,  by  reason  of  which  fact  the  law  protects  it 
as  privileged,  he  will  not  be  liable  if  he,  by  mistake,  places 
the  letter  in  an  envelope  addressed  to  a  stranger,  who  re- 
ceives it  and  reads  it." 

§  1291.  As  to  Character  of  Servants.  —  A  case  of 
privilege  of  this  kind  which  often  arises  is  where  a  per- 
son is  asked  as  to  the  character  oT  a  former  ser'''  mt  by 
one  to  whom  he  or  she  has  applied  for  a  situation.  A 
duty  is  thereby  cast  upon  the  former  master  to  state  fully 
and  honestly  all  that  he  knows  either  for  or  against  the 
servant;  and  any  com.nunication  made  in  the  perform- 
ance of  his  duty  is  privileged,  even  though  it  should  turn 
out  that  the  former  master  is  mistaken.*  But  if  a  mas- 
ter falsely  and  maliciously  gives  a  servant  a  bad  character, 
his  communication  is  not  privileged.'  So  where  a  mer- 

note;  Amann  v.  Damm,  8  Com.  B.,  N. 
S.,  5!)7;  Bradley  v.  Heath,  12  Pick. 
163;  22  Am.  Dec.  418;  Elam  v.  Bad- 
aer,  23  HI.  498;  White  v.  Nicholls,  3 
How.  266;  Lewis  v.  Chapman,  16  N. 
Y.  375;  Fowles  v.  Bowen,  30  N.  Y. 
20;  Nooiian  v.  Orton,  32  Wis.  106; 
Hatch  V.  Lane,  105  Mass.  394;  AtwiU 
V.  Mackintosh,  120  Mass.  177. 
'  Rogers  v.  Cliftou,  3  Bos.  &  P.  587. 


1  Cole  V.  Wilson,  18  B.  Mon.  212. 

2  Perkins  t>.  Mitchell,  31  Barb.  4G1. 
'  Alpin  V.  Morton,  21  Ohio  St.  536. 
*  Toogood  V.  Spyring,  1  Crontp.  M. 

&  R.  181;  Billings  o.  Fairbanks,  139 
Mass.  06. 

'"  Tonipson  V.  Dashwood,  48  J.  P.  55. 

"  Piittison  V.  Jones,  8  Barn  &  C. 
578;  Storey  v.  Challands,  8  Car.  &  P. 
234;   Duumaa  v.   Bigg,  1  Camp.  269, 


§1291 


SLANDER   AND   LIBEL. 


2318 


chant  in  discharging  a  clerk  has  given  him  a  letter  of 
recommendation,  a  subsequent  communication  to  a  new 
employer  of  facts  which  he  has  since  learned  which 
caused  him  to  doubt  his  honesty  is  privileged.^  So  a 
communication  by  the  new  employer  to  the  old  one  say- 
ing that  the  servant  does  not  deserve  the  character  he 
gave  her  is  privileged.''  A  master  may  volunteer  infor- 
mation  to  a  new  employer  without  being  asked,  but  when 
he  "  volunteers  to  give  the  character,  stronger  evidence 
will  be  required  that  he  acted  bona  fide  than  in  the  case 
where  he  has  given  the  character  after  being  required  so 
to  do."  '^  If  a  master  about  to  dismiss  his  servant  for  dis- 
honesty calls  in  a  friend  to  hear  what  passes,  the  presence 
of  such  third  person  does  not  take  away  the  privilege  from 
words  which  the  master  then  uses  imputing  dishonesty.* 
A  pamphlet  containing  the  names  of  discharged  em- 
ployees of  a  railroad  company,  with  reasons  for  their 
discharge,  and  placed  by  the  railroad  company  in  the 
hands  of  persons  whose  duty  it  is  to  eujploy  servants  on 
behalf  of  the  company,  is  a  privileged  communication.^ 

Illustrations. —  A,  on  being  applied  to  for  the  character  of 

B,  who  had  been  his  saleswoman,  charged  her  with  theft.  He 
had  never  made  such  a  charge  against  her  till  then;  ho  told 
her  that  lie  would  say  nothing  about  it  if  she  resumed  her  em- 
ployment at  his  house;  subsequently  he  said  that  if  she  would 
acknowledge  the  theft  he  would  give  her  a  character.  Held, 
that  tliere  was  abundant  evidence  that  the  charge  of  theft  was 
made  mala  fide,  with  the  intention  of  compelling  B  to  return 
to  A's  service:  Jackson  v.  Hopperton,  16  Com.  B.,  N.  S.,829.  A 
master  discliarged  his  footman  and  cook,  and  they  asked  him 
his  reason  for  doing  so,  and  he  told  the  footman,  in  the  ahsence 
of  the  cook,  that  ''  he  and  the  cook  had  been  robbing  him,"  and 
told  the  cook,  in  the  absence  of  the  footman,  that  lie  had  dis- 
charged her  "because  she  and  the  footman  had  been  robhiiig 
him."  Held,  that  these  were  privileged  communications  as 
respected  the  absent  parties,  as  well  as  those  to  whom  they 
were  respectively  made:  Manhyv.  Wilt,  18  Com.  B.  544;  25  L.J. 

C.  P.  294. 


I  Fowlea  v.  Bowen,  SON.  Y.  20. 

*  Dixon  V.  Parsons,  1  Fost.  &  F.  24. 

'  Fattison  v.  Joues,  8  Baru  &  C.  5S(i. 


♦  Taylor  v.  Hawkins,  16  Q.  B.  .308. 

*  Missouri  Pacific  R.  R.  Co.  v.  Rich- 
monJ,  Tex.,  1889. 


2319 


DEFENSES. 


§  1292 


§  1292.  Answers  to  Confidential  Inquiries.  —  Answers 
to  private  and  confidential  inquiries  made  as  to  another 
are  qualifiedly  privileged/  provided  the  defendant  honestly 
bt'l'eves  in  the  truth  of  what  ho  says,  and  his  communi- 
cation is  relevant  to  the  inquiry  made  of  him.'^  Words 
spoken  to  a  landlord  in  answer  to  inquiries  by  him  as  to 
the  character  of  a  tenant  are  privileged  communications, 
if  spoken  without  malice.'  When  once  such  a  confiden- 
tial inquiry  is  set  on  foot,  all  subsequent  interviews  be- 
tween the  parties  are  privileged,  so  long  as  what  takes 
place  thereat  is  still  relevant  to  the  original  inquiry.* 

Illustrations.  —  W.  met  P.,  and,  addressing  liim,  said:  "I 
hear  tliat  you  say  the  bank  of  B.  and  S.  has  stopped.  Is  it 
true?"  P.  answered:  "Yes;  it  is.  I  was  told  so.  It  was  so 
reported  at  C,  and  nobody  would  take  their  bills,  and  I  came 
to  town  in  consequence  of  it  myself."  Held,  that  if  P.  under- 
stood W.  to  be  asking  for  information  by  which  to  regulate  his 
conduct,  and  spoke  the  words  merely  by  way  of  honest  advice, 
tlioy  were  prima  facie  privileged:  Bromage  v.  Prosscr,  4  Barn. 
&  C.  247;  1  Car.  &  P.  475.  Defendant  was  asked  to  sign  a 
memorial  the  object  of  which  was  to  retain  the  plaintilF  as 
trustee  of  a  charity,  from  which  office  he  was  about  to  be  re- 
moved. Defendant  refused  to  sign,  and  on  being  pressed  for 
his  reasons,  stated  them  explicitly.  Held,  privileged:  Cowles 
v.  Potts,  34  L.  J.  Q.  B.  247;  11  Jur.,  N.  S.,  946.  Plaintiff  was 
a  London  merchant  who  had  had  business  relations  with  the 
London  and  Yorkshire  Bank.  Defendant,  the  manager  of  that 
bank,  on  being  applied  to  by  one  H.  for  information  about  the 
plaintiff,  showed  H.  an  anonymous  letter  which  the  bank  had 


» Storey  V.  Chaliands,  8  Car.  &  P.  234. 
"  Every  one  owea  it  as  a  duty  to  hia 
fellow-iiien  to  state  what  he  knows 
alioiit  a  person  when  inquiry  is  made  ": 
Rol)sliawv.  Smith,  38  L.  T.,  N.  S.,423. 
It  appoars  to  me  that  if  you  ask  a  ques- 
tion of  a  person  who  you  believe  to 
have  the  means  of  knowledge  about 
the  character  of  another  person  with 
whom  you  wish  to  have  any  dealings 
whatuver,  and  he  answers  bona  fide, 
that  is  privilage  communication.  I 
mi^lit  illustrate  this  by  the  instances 
of  inquiries  being  made  of  a  friend  or  a 
neighbor  about  a  tradesman,  a  doctor, 
or  a  solicitor.     Society  could  not  go 


on  without  such  inquiries.  The  whole 
doctrine  of  privilege  must  rest  upon 
the  interest  and  necessities  of  society. 
If  every  one  was  open  to  an  action  tor 
libel  or  slander  for  the  answers  ho 
might  make  to  such  inquiries,  it 
would  be  very  injurious  to  the  in- 
terests of  society":  Jc.^sul,  M.  R.,  in 
Wallers.  Loch,  L.  R.  7  Q.  B.  Div.  G19. 

*  OJgers  on  Libel  and  Slander,  2>J5. 

*  Liddle  V.  Hodges,  'J  Bnsvv.  537. 

*  Beatson  v.  Skene,  5  Hurl.  &  N. 
838;  Hopwood  v.  Thorn,  8  Com.  B. 
293;  WaUace  v.  Carroll.  11  Ir.  C.  L. 
Rep.  485. 


1292 


SLANPER  AND  LIBEL. 


2G20 


received  about  the  plaintiff,  and  which  contained  the  libel  In 
question.  Held,  that  handing  H.  the  letter  in  confidence  w.h 
privileged:  Robshaw  v.  Smith,  SSL.  T.,  N.  S.,  423.'  A  slierilf 
levied  upon  certain  cattle,  and  they  were  subsequently  driven 
away  by  other  parties,  and  tne  sheriff  employed  A,  a  student  .it 
law,  to  ascertain  the  facts,  and  advise  him  what  to  do,  and  A 
afterwards  wrote  to  the  sheriff  that  he  had  ascertained  tliat  B 
had  been  seen  driving  off  the  cattle,  and  advised  him  to  prose- 
cute B  for  larceny,  as  he  had  no  doubt  that  the  cattle  wore 
feloniously  taken.  Held,  a  privileged  communication,  and  tliat 
B  could  not  maintain  an  action  for  libel  against  A  upon  it,  with- 
out proof  of  actual  malice:  Washburn  \,  Cook,  3  Denio,  110. 
The  defendant  had  suspected,  and  declared  his  suspicions,  that 
a  person's  wife  had  committed  larceny,  but  upon  being  inquirod 
of  by  that  person  whether  his  suspicions  continued,  replied  that 
he  was  now  satisfied  that  A  B  (a  hired  maid)  stole  it.  //(/(/, 
that  if  the  communication  was  privileged  at  all,  the  defamatory 
matter,  going  further  than  to  satisfy  the  inquirer  that  there  was 
reason  for  the  suspicions  to  cease,  went  beyond  the  exigency  of 
the  occasion:  Robineit  v.  Ruby,  13  Md.  95.  Plaintiff  had  been 
tenant  to  the  defendant;  a  wine-broker  went  to  defendant  to 
ask  him  plaintiff's  present  address.  Defendant  commenced  to 
abuse  the  plaintiff.  The  broker  said:  *'  I  don't  come  to  inquire 
about  his  character,  but  only  for  his  address;  I  have  done  busi- 
ness with  him  before."  But  the  defendant  continued  to  denounce 
the  plaintiff  as  a  swindler,  adding,  hov  '^ver,  "  I  speak  in  confi- 
dence." The  broker  thanked  defendant  for  his  remarks,  and 
declined  in  future  to  trust  the  plaintiff.  Held,  rightly  left  to 
the  jury  to  say  if  defendant  spoke  bona  fide  or  maljeiously: 
Pieton  V.  Jackman,  4  Car.  &  P.  257.  A  was  discharged  from 
his  employer's  service,  and  on  applying  to  his  employer's  agent 
to  know  why,  he  was  told  for  stealing.  Held,  that  as  he  had 
asked  the  question,  and  as  the  answer  was  given  in  good  faith, 
there  was  no  cause  of  action  for  slander:  Beeler  v.  Jackson,  64 
Md.  589. 


'  The  court  saying:  "The  defendant 
did  not  act  as  a  volunteer,  but  was 
applied  to  for  information.  When 
applied  to  he  did  give  such  informa- 
tion as  lie  possessed.  He  might  have 
refused  to  give  that  information.  He 
had  no  legal  duty  cast  upon  him  to 
give  any  opinion.  But  he  was  entitled 
to  give  his  opinion  when  asked,  and  a 
fortiori,  as  it  seems  to  me,  to  show  any 
letters  he  had  received  bearing  on  the 
subject.  If  one  man  shows  another  a 
letter,  ho  leaves  him  to  estimate  what 
value  attaches   to  it;    whereas  any 


opinion  he  gives  might  be  based  on 
very  insufficient  grounds.  It  u  bet- 
ter to  state  facts  than  to  giw  aa 
opinion.  Every  one  owes  it  a?i  ;i  duty 
to  his  fellow-men  to  state  what  lie 
knows  about  a  person,  when  iniuiry 
is  made;  otherwise  no  one  wmiltl  be 
able  to  discern  honest  men  fnuii  dis- 
honest men.  It  is  highly  ik'sirable, 
therefore,  that  a  privilege  ot  this  sort 
should  be  maintained.  An  auoiiymous 
letter  is  usually  a  very  dt'spicable 
thing.  But  anonymous  lettoia  may 
be  ver^  importaat,  not  by  leasou  of 


2321 


DEFENSES. 


§1203 


§  1293.    Information  Volnnteered.  —  And  in  certain 
oases  a  person  may  volunteer  information  as  to  another; 
tliongh  wliere  no  inquiry  is  made  of  the  party,  it  requires 
a  stronger  case  to  justify  tlie  communication.'     Tlie  de- 
fendant is  "  entitled  to  judgment  if  the  jury  find  that  he 
reasonably  acted  under  an  honest  sense  of  duty,  desiring 
to  servo  the  person  most  concerned,  and  not  from  any 
self-seeking  motive.     But  there  must  be  some  circum- 
stances proved  before  them,  showing  that  such  a  sense  of 
duty  was  reasonably  possible.     It  is  not  sufficient  for  the 
defendant  merely  to  swear,    'I  acted  under  a   sense  of 
duty.'     The  defendant  is  not  to  be  punished  for  merely 
being  over-conscientious;  but  on  the  other  hand,  it  is  clear 
law  that  a  man  is  not  justified  in  repeating  information 
he  has  received  prejudicial  to  the  plaintiff  merely  because 
he  sincerely  believes  it  to  be  true."  ^     There  is  no  rule  of 
law  on  the  subject;  whether  the  circumstances  justified 
the  communication  can  be  the  only  test.     "  It  appears  to 
be  clear  that  if  the  defendant  reasonably  supposes  that 
human  life  would  be  seriously  imperiled  by  his  remain- 
ing silent,  he  may  volunteer  information   to  those  thus 
endangered,  or  to  their  master,  though  he  be  not  himself 
personally  concerned.     So,  if  the  money  or  goods  of  the 
person  to  whom  he  speaks  would  be  in  great  and  obvious 
danger  of  being  stolen  or  destroyed.     So,  too,  it  appears 
that  the  defendant  ma)',  without  being  applied  to  for  the 
information,  acquaint  a  master  with  the  misconduct  of 
his  servants,  if  instances  thereof  have  come  under  the 
especial  notice  of  the  defendant,  and  have  been  concealed 
from  the  master's  eye.     But  in  most  other  cases  the  de- 
fendant runs  a  great   risk   in   volunteering   statements 
which  afterwards  turn  out  to  be  inaccurate,  unless,  indeed, 


what  they  say,  but  because  they  lead 
to  inquiry,  wliicli  may  substantiate 
what  thuy  havo  said.  It  seems  tome, 
th(!ieiure,  that  he  was  fully  entitled 
to  show  tln>5  a:ionymou8  letter  for  what 
it  was  worth." 
146 


>  Odgers  on  Libel  and  Slander, 
207. 

^  Odgeps  on  Libel  and  Slander,  214; 
citing  Botterill  v.  Whytehead,  41  L. 
T.,  N.  S.,  588. 


g  129? 


SLANDER  AND   LIBEL. 


2322 


he  is  himself  personally  interested  in  the  matter,  or  com- 
pelled to  interfere  by  the  fidnciary  relationship  in  which 
ho  stands  to  some  person  concerned."  *  It  has  boon  hold 
that  one  who  has  an  opportunity  of  seeing  malpractices 
on  the  part  of  servants  may  write  to  their  master  expos- 
ing  them.'^  The  occupier  of  a  house  may  complain  to  the 
landlord  of  the  conduct  of  workmen  sent  to  repair  it."^  A 
church  member  may  write  to  the  bishop  of  the  diocese 
concerning  the  conduct  of  a  minister.* 

Statements  that  a  man  has  been  imprisoned  for  larceny, 
made  to  the  family  of  a  woman  whom  he  is  about  to  marry, 
by  one  who  is  no  relation  of  either,  and  not  in  answer 
to  inquiries,  are  not  privileged  communications.^  So  a 
libelous  communication  is  not  privileged  when  made  to 
an  unmarried  woman  concerning  her  suitor,  by  the  fuct 
that  she,  some  years  before,  had  requested  to  be  informed 
of  anything  the  defendant  knew  "  about  any  young  man 
she  went  with,  or,  in  fact,  any  young  man  in  the  place," 
if  the  defendant  was  not  a  relative  of  such  young  woman, 
and  owed  no  special  duty  to  her.®     Stating  that  a  com- 


*  Odgcrs  on  Libel  and  Slander,  216. 
^  Cleaver  w.  Sarraude,  1  Camp.  2G8; 

Kino  i\  Sewell,  3  Mees.  &  W.  297; 
Amann  v.  Damm,  8  Com.  B.,  N.  S., 
597. 

*  Toogood  V.  Spyring,  1  Cromp.  M. 

6  R.  181. 

*  Jamca  v.  Boston,  2  Car.  &  K.  4. 
»  Krebs  v.  Oliver,  12  Gray,  239. 
8Byain  v.  Collins,  111  N.  Y.  143; 

7  Am.  St.  Rep.  726;  the  court  saying: 
"The  general  rule  is,  that  in  the  case 
of  a  libuloiis  publication  the  law  im- 
plies malice,  and  infers  some  damage. 
What  are  called  '  privileged  commu- 
nications '  are  exceptions  to  this  rule. 
Such  communications  are  divided 
into  several  classes,  with  one  only 
of  which  we  are  concerned  in  this 
case,  and  that  is  generally  formulated 
thus:  'A  communication  made  bona 
JiUti  upon  any  subject-matter  in  which 
the  party  communicating  has  an  in- 
terest, or  in  reference  to  which  ho  has 
a  duty,  is  privileged,  if  made  to  a 
person  having  a  correspoudiug  interest 


or  duty,  although  it  contains  criminat- 
ing matter  which,  without  tliLs  privi- 
lege, would  be  slanderous  and  action- 
able; and  this,  though  the  duty  lie  not 
a  legal  one,  but  only  a  moral  or  social 
duty  of  imperfect  obligation.'  .  .  ,  , 
Whether  within  the  rule  as  defined  in 
these  cases  a  libelous  comnamication 
is  privileged,  is  a  question  of  l;iw;  and 
when  upon  any  trial  it  has  l)ceii  iield 
as  matter  of  law  tobeprivilugeil,  then 
the  burden  rests  upon  the  plaintiff  to 
establish   as    matter   of    fuct  that  it 
was  maliciously  made,  and  this  mat- 
ter of  fact  is  for  the  determination  of 
the  jury.     It  has  been  found  dilEcuit 
to  frame  this  rule  in  any  language  that 
will  furnish  a  plain  guide  in  all  cases. 
It  is  easy  enough  to  apply  tho  rule  in 
cases  where    both    parties  —  the  one 
making  and  the    one    receiving  the 
communication  —  are  interested  in  it, 
or  where  the  parties  are  related,  or 
where  it  is  made  upon  request  to  a 
party  who  has  an  interest  in  receiving 
it,  or  where  the  party  making  it  has 


2322 


2323 


DEFENSES. 


1208 


jr,  or  com- 
,  in  whicli 
boon  held 
alpracticos 
,stor  cxpos- 
)laiii  to  tlio 
opuir  it.*  A 
the  diocose 


for  larceny, 
ut  to  marry, 
t  in  answer 
ions.^     So  a 
lon  made  to 
by  the  fuct 
be  informed 
J  young  man 
n  the  place," 
oung  woman, 
f  that  a  corn- 
contains  criminat- 
dthout  thi.s  privi- 
lcrou3  anil  action- 
.ghtho  duty  l>e  not 
y  a  moral  or  social 
obligation.'  .... 
3  rule  as  dctlnedin 
lus  eomniuuication 
leation  of  l:i\v;  and 
.  it  has  l)cmi  li*;l*l 
3ex)rivilogi;il,  then 
jou  the  plaintiff  to 
jr   of    fact  that  it 
ade,  and  this  mat- 
10  determination  of 
been  found  difficult 
n  any  language  that 
1  guide  in  all  cases. 
,o  apply  the  rule  m 
parties  —  the  one 
one    receiving  the 
are  interestod  in  it, 
ties  arc  related,  or 
upon  request  to  a 
interest  in  receiving 
»arty  making  it  m 


nmnication  made  is  made  confidentially,  or  marking  a 
letter  "  private  and  confidential,"  does  not  make  the 
communication  confidential  and  privileged,  unless  it  was 
a  communication  which  the  defendant  had  a  right  to 
make  under  the  rules  just  given.' 

Illustrations.  —  N.  selected  plaintiff  to  be  his  attorney  in 
an  action.     Defendant,  apparently  a  total  stranger,  wrote  to  N. 
to  (l(>precate  his  so  employing  the  plaintiff.     Held,  not  a  confi- 
dential communication:    Godson  v.  Home,  1  Ball  &  B.  7.     H. 
was  about  to  deal  with  S.,  when  he  met  the  defendant,  who 
paid  at  once,  without  his  opinion  being  asked  at  all,  "If  you 
have  anything  to  do  with  S.,  you  will  live  to  repent  it;  he  is  a 
most  unprincipled  man."     Held,  not  a  confidential  communi- 
cation :  Storey  v.  Challands,  8  Car.  &  P.  234.     The  first  mate  of 
a  ship  wrote  a  letter  to  the  defendant,  an  old  friend,  stating  that 
lie  was  placed  in  an  awkward  position  owing  to  the  drunken 
habits  of  the  captain,  and  saying,  "  IIow  shall  I  act?     It  is  my 
duty  to  write  to  Mr.  Ward  [the  owner  of  the  ship],  but  my 
doing  so  would  ruin"  the  captain  and   his  wife  and  family. 
Tlio  defendant,  after  much  deliberation  and  consultation  with 
other  nautical  friends,  thought  it  his  duty  to  show  the  letter  to 
Ward,  who  thereupon  dismissed  the  captain.     The  defendant 
knew  nothing  of  the  matter,  except  from  the  mate's  letter. 
IFdd,  that  the  letter  was  privileged:    Coxhead  v.  Richards,  2 
Com.  13.  569,  but  by  a  divided  court.     See  Amann  v.  Dovim,  8 
Coin.  B.,  N.  S.,  597.      D.  told  S.  that  he  intended  to  employ  the 
plaintiff  as  surgeon  and  accoucheur  at  his  wife's  approa(diing 
condnement.     S.  thereupon  advised  him  not  to  do  so,  on  ac- 
count of  the  plaintiff's  alleged  immorality.     Held,  a  privileged 
coimnunication,  though  it  was   volunteered:  Dixon  v.  Smith, 
20  L.  J.  Ex.  125;  5  Hurl.  &  N.  450.     A  and  B  were  share- 


an  interest  to  subserve,  or  where  the 
party  making  it  is  under  a  legal  duty 
to  iiiako  it.  But  when  the  privilege 
rests  .simply  upon  the  moral  duty  to 
maku  the  communication,  there  has 
liLCii  nmch  uncertainty  and  difficulty 
ill  apiilyifig  the  rule Mrs.  Col- 
lins, then,  appears  as  a  mere  volunteer, 
writiuL?  the  letter  to  break  up  rela- 
tions which  she  feared  might  lead  to 
tho  marriage  of  the  plaintiff  to  Dora. 
^1  .she  had  been  the  mother  of  Dora, 
or  other  iioarrelative,  or  if  she  had  been 
askc  1  l)y  Dora  for  information  as  to 
the  plaintiff '.s  character  and  standing, 
she  could  with  propriety  hav*  given 


any  information  she  possessed  affecting 
his  cliaractcr,  provided  she  acted  iu 
good  faith,  and  without  malice.  But 
a  more  volunteer,  having  no  duty  to 
perform,  no  interest  to  subserve,  in- 
terferes with  tho  relations  between 
two  such  people  at  her  peril.  The 
rules  of  law  should  not  be  so  admin- 
istered as  to  encourage  such  inter- 
meddling, which  may  not  only  blast 
reputation,  but  possibly  wreck  lives. 
In  such  a  case,  the  duty  not  to  defame 
is  more  pressing  than  the  duty  to  com- 
municate mere  defamatory  rumors  not 
known  to  be  true." 

?ictou  V.  Jackman,  4  Car.  &  P.  257. 


120.3 


SLANDER  AND   LIBEL. 


2324 


lioldcrs  in  tho  pamo  r.illmiy  company.  B  was  also  a  rivor 
ooiiuniHsionor.  Tlio  pluintiH"  hud  bemi  engineer  to  tho  r!iil\v;iy 
coiiipiiny,  and  was  seeking  to  be  elected  engineer  to  the  river 
coiiiiuietHioners.  Shortly  before  tho  election,  A  voluntarily 
wrote  to  B  that  the  plaintifT'H  niisnianagenient  or  ignoranco 
had  cost  the  railway  company  ecveral  thousand  pounds.  Tlio 
dci'i'iidant  lost  tlie  appointment  in  consequence.  Held,  not  ^ 
privileged  communication:  Jirooksy.  Blam^hard,  1  Cromp.  <\L-  M. 
77!);  -'5  Tyrw.  844.  The  defendant  was  a  director  of  two  coin- 
patiiea;  of  one  of  which  the  plaintiff  was  secretary,  of  tlie  other 
auditor.  Tho  plaintifT  was  dismissed  from  his  post  as  secntnry 
of  tlni  first  company  for  alleged  misconduct.  Thereupon  tiio 
defendant,  at  the  next  meeting  of  the  board  of  tho  second  coui- 
pauy,  informed  his  co-directors  of  this  fact,  and  proposed  tlmt 
he  should  also  bo  dismissed  from  his  post  of  auditor  of  the 
second  company.  Held,  a  privileged  communication:  Jf'irris 
V.  Tliom2)son,  13  Com.  B.  333.  D  met  C  in  the  road  and  aski  J 
him  if  he  had  sold  his  timber  yet.  C  replied  that  B  was  going 
to  have  it.  1)  asked  if  he  was  going  to  pay  ready  money  for  it, 
and  being  answered  in  the  negative,  said,  "Then,  you'll  lose 
your  timber;  for  B  owes  me  about  twenty-five  pounds,  and  [ 
am  going  to  arrest  him  next  week  for  my  money,  and  your 
timber  will  help  to  pay  my  debt."  C  consequently  declined  to 
sell  the  timber  to  B.  B  really  did  owe  D  about  twenty-three 
pounds.  Held,  that  tho  caution  was  unprivileged,  beciuiso 
volunteered:  Bennett  v.  Deacon,  2  Com,  B.  G2S;  15  L.  J.  Com. 
P.  281),  but  by  a  divided  court.  In  an  action  by  plaintiff,  who 
had  been  defendant's  tenant  at  will,  against  the  landlord  for 
slander  in  stating  that  the  tenant  had  willfully  burned  tho 
buildings,  it  appeared  that  the  statement  made  by  defendant 
was  in  the  course  of  the  consideration  by  tho  judiciary  coniuiit- 
tee  of  the  legislature  of  a  proposed  bill  as  to  liability  of  tenants 
at  will,  defendant  having  been  instrumental  in  bringinji;  the 
matter  to  the  attention  of  the  legislature;  but  it  did  not  appear 
that  he  was  sworn  as  a  witness  before  the  committee,  nor  that 
they  regarded  him  as  such,  nor  that  the  statement  was  in  reply 
to  any  question  put  to  him  by  the  committee.  Held,  that  tlie 
communication  was  privileged,  if  defendant  acted  in  uood 
faith  and  without  malice:  Wright  v.  Lathrop,  Mass.  l!S89. 
The  defendant,  n  i>arishioner,  mentioned  to  her  rector  a  re|)ort, 
widely  current  i.i  the  parish,  that  the  rector  and  his  solicitor 
were  grossly  mismanaging  a  trust  estate,  and  defrauding  tlie 
widow  and  orphans,  etc.  The  solicitor  brought  an  action  lor 
the  slander.  The  jury  found  that  she  did  so  in  the  honest 
belief  that  it  was  a  benefit  to  the  rector  to  inform  him  of  llin 
report,  in  order  that  he  might  clear  his  character.  Held,  that 
the  statement  was  privileged  so  far  as  the  rector  was  concerned, 


2325 


DEFENSES. 


§  1294 


and  lliat,  as  it  was  not  diviBiblo,  it  was  also  privileged  as  to  tlie 
pl.iintiff:  Davics  v.  Snead,  L.  II.  5  Q.  B.  Oil.  A  woman  vvlioso 
lVi(!iid  contemplated  marriage  wrote  to  her  imputations  on  the 
cliiiraoter  of  the  man  whom  she  proposed  to  marry.  The 
motive  of  the  communication  was  love  and  friendship.  Held, 
tliiit  he  could  maintain  an  action  for  libel:  Byam  v.  Collins,  111 
N.  Y.  143;  7  Am.  St.  Rep.  726. 

§  1294.    Same — Oonfldential  Relationship. — But  where 
there  is  a  conlidontial    relation  existing  between  the  par- 
ties, information  to   the    interest  of  the   person  to  know 
may  properly  be  volunteered.    Thus  an  agent  has  a  right 
to  give  unasked  all  he  knows  of  a  person  who  is  dealing 
with  his   principal.*     So  a  father,  guardian   (or    a  rela- 
tion), or   an  intimate  friend,  may  warn  a  young  man 
against  associating  with  a  particular  individual,  or  may 
warn  a  lady  not  to  marry  a  particular  suitor,  though  in 
the  same  circumstances  it  might  be  considered  officious 
and  meddlesome  if  a  mere  stranger  gave  such  a  warning. 
So  if  the  defendant  is  in  the  army  or  in   a  government 
office,  it  would  be  his  duty  to  inform  his  official  superiors 
of  any  serious  misconduct  on  the  part  of  his  subordinates; 
for  the  defendant  is  in  some  degree  answerable  for  the 
faults  of  those  immediately  under  his  control.''     Confi- 
dential communications    between  a  party  and  his  profes- 
sional adviser,  whether  legal,  medical,  or   spiritual,  fall 
witliin    the   same  principle.'     So  words    spoken   by   an 
employer  to    his    overseer,  intended  to  protect  the  em- 
ployer's private  interests  and  property,  but  not   spoken 
maliciously,  are  not  actionable,  although  no  confidence  was 
expressed  at  the  time  of  speaking,  and  although  the  same 
words    published   under  other   circumstances  would   be 
slander.*    A  communicatioQ  made  by  one  to  the  agent 

'  Davis  V.  Reeves,  5  Ir.  O.  L.  Rep.  79;  Todd  v.  Hawkins,  2  Moody  &  R.  20; 

Wii-lit  ('.  Woodgate,  2  Cromp.  M.  &  Henwood  v.  Harrison,  L.  R.  7  Cora. 

R.  57:{;  Washburn  v.  Cooke,  3  Denio,  P.  606;  Scarll  v.  Dixon,  4   Fost.  &  F, 

110;  Knowles  v.  Peck,  42  Conn.  386;  250;  Perkins  v.  Mitchell,  31  Barb.  461, 

ID  Am.  Rep.  542.  »  Cooley  on  Torts.  216. 

^  Odgers  on  Libel  and  Slander,  210j  *  Eaaley  v.  Moss,  9  Ala.  266. 


51294 


SLANDER   AND   LIBEL. 


2320 


or  president  of  an  insurance  company,  in  which  plaintiiT's 
property  was  insured  at  the  time  of  its  destruction  byliic, 
cliarf^ing  plaintiff  with  arson  in  setting  fire  thereto,  and 
with  perjury  in  making  proofs  of  loss,  is  conditionally 
privileged.*  Reports  by  one  employed  by  a  father  to 
ascertain  the  standing  of  his  daughter's  husband,  nuido 
to  the  father  and  mother,  are  privileged.'^ 

But  a  corarauiucation  is  not  privileged  because  miulo 
by  the  party  in  the  conviction  that  he  owed  a  social  duty 
to  give  currency  to  libelous  rumors,  that  the  victim  df 
them  may  be  avoided.*  There  is  no  privilege  to  a  stran- 
ger who  interferes  in  negotiations  of  marriage,  thouujh 
there  would  be  to  a  near  relative.*  There  is  no  privilege 
to  a  priest  in  making  charges  against  members  of  his  con- 
gregation  in  relation  to  their  business  from  the  pulpit.'^ 

Illustrations.  —  Rumors  being  in  circulation  prQ^judicial  to 
the  character  of  the  plaintiff,  a  minister,  ho  courted  inquiry, 
and  appointed  A  to  sift  the  matter  thoroughly.  It  was  agreed  that 
the  defendant  should  represent  the  malcontent  portion  of  tli') 
congregation,  and  state  the  case  against  the  plaintiff  to  A.  Held, 
that  a  confidential  relationship  being  thus  established  betwotii 
the  defendant  and  A,  all  that  took  place  between  them,  whcllior 
byword  of  mouth  or  in  writing,  so  long  as  the  inquiry  lasted,  and 
relative  thereto,  was  privileged:  Ilopwood  v.  Thorn,  8  Com.  15. 
293.  Defendant  dismissed  his  apprentice  without  sufliticnt 
legal  excuse;  he  wrote  a  letter  to  her  parents,  informing  them 
that  the  girl  would  be  sent  home,  and  giving  his  reasons  for 
her  dismissal.  Held,  that  this  letter  was  privileged,  as  there 
was  a  confidential  relationship  between  the  girl's  master  and 
her  parents:  James  \.  Jolly,  Odgers  on  Libel  and  Slander,  212. 
Defendant  and  T.  were  joint  owners  of  the  Robinson,  and  en- 
gaged the  plaintiff  as  master;  in  April,  1843,  defendant  i)ur- 
chased  T.'s  share;  in  August,  1843,  defendant  wrote  a  busines-i 
letter  to  T.,  claiming  a  return  of  £150,  and  incidentally  lihekd 
the  plaintiff.  Held,  a  privileged  communication,  as  the  dolVnd- 
ant  and  T.  were  still  in  confidential  relationship:  IF/7mh)  v. 
Robinson,  7  Q.  B.  68.     A  New  Orleans  firm,  in  private  corrc- 


^  Noonan  v,  Orton,  32  Wis.  106. 
>  Atwill  V.  Mackintosh,  120  ^lass. 
117. 
3  Byam  v.  Collins,  111  N.  Y.  143; 
"\m.  St.  Rep.  726. 


'*  Joannes  w.  Bennett,  5  Allcu,  170; 
81  Am.  Dec.  738;  Byam  v.  CoUius, 
111  N.  Y.  143;  7  Am.  St.  Rep.  7i'l5. 

''  Fitzgerald  v.  Robinson,  112  Ala^ 
371. 


2327 


DEFENSES. 


§  1295 


ppondcncp  with  a  Now  York  house,  n'pcated  information  rorcivod 
from  ita  own  corrospondont  at  Mobilo  as  to  a  firm  at  Mohilo,  as 
t'i)llo\vs:  "  I),  it  ('o.  aro  people  of  no  standing  or  credit  wliatso- 
over.  Neitlier  liave  tlicy  any  ineans.  Up  to  lantJuly  tli<y  were 
dealers  in  chickens,  eggs,  etc.  Since  that  time  they  have  been 
buying  cotton  quite  freely,  to  the  general  astonishment  of  tho 

conimunity Wo  told  them  we  could  never  touch  their 

bills  again,  unless  they  wrote  us  a  letter  stating  their  means, 
luul  which  wo  would  forward  to  your  good  selves,  subject 
to  your  approval.  They  were  furious  enough,  Init  up  to  now 
wo  never  received  that  pronused  letter."  Held,  that  tho 
matter  was  privileged:  Dunsce  v.  Nordcn,  36  La.  Ann.  78.  At 
the  suit  of  the  owner  of  a  patent  for  vulcanized  rubber.  A,  a 
tlcntist,  was  enjoined  from  using  tho  preparation.  Ij(>lieving 
tliat  A  disregarded  the  injunction,  tho  owner  employed  IJ  to 
ascertain,  li  i)rocured  C  to  apply  to  A  for  a  set  of  teeth  upon 
a  plate  of  vulcanized  rubber.  A  made  tho  teeth  upon  such 
plate,  delivered  them  to  C,  and  received  pay  therefor.  B  and  C 
reported  the  facts  to  tho  owner,  and  on  their  affidavits,  ])roceed- 
iiigs  for  contempt  were  commenced  against  A.  Held,  that  tho 
coiamunications  of  B  and  C  to  tho  owner  of  the  patent  wero 
privileged:  Knowles  v.  Peck,  42  Cpnn.  386;  19  Am.  Rep.  542. 

§  1295.  Same — Statements  to  Officers  of  the  Law  and 
Public  Authorities.  —  Statements  made  to  tho  ofliccrs  of 
tlic  law  for  the  purpose  of  discovering  a  crime  or  bring- 
ing a  guilty  person  to  justice  are  privileged,  provided  they 
are  made  on  reasonable  grounds,  honestly,  and  without 
malice,  even  though  unfounded.^  It  is  the  duty  of  all  who 
witness  or  are  cognizant  of  any  misconduct  on  the  part 
of  a  magistrate  or  any  public  officer  to  bring  such  mis- 
conduct to  the  notice  of  those  whose  duty  it  is  to  inquire 
into  and  punish  it;  and,  therefore,  all  petitions  and 
memorials  complaining  of  such  misconduct,  if  prepared 
bona  fide  and  forwarded  to  the  proper  authorities,  are 
privileged.^     So  a  petition  to  the  appointing   i)ower  in 


'  Amana  v.  Damm,  8  Com.  B. ,  N. 
S.,  r)i);;  Bimtoii  r.  Worley,  4  Bibb,  98; 
7  Am.  Deo.  7;>D;  Eainea  v.  Whitaker, 
12:i  Mass.  :^4_';  Sands  v.  Robiaon,  12 
Sino.l.s  &  M.  70-};  CA  Am.  Dec.    133; 


2  Harrison  v.  Bush,  5  El.  &  B.  344; 
Reiil  V.  De  Lorme,  2  Brev.  7G;  Van- 
derzee  v.  McGregor,  12  Wend.  545;  27 
Am.  Dec.  156;  Howard  v.  Thompson, 
21  Wend.  319;  34  Am.  Duo.  'J3S;  Brad- 


Shoo!;  r.  MoCliesney,  4Yeates,  507;  2    ley  v.  Heath,   12  Pick.   ItiS;  22   Am. 
Am.  Dec.  415.  Dec.  418;  Bodwell  v.  Osgood,  3  Pick. 


§1295 


SLANDER   AND   LIBEL. 


2328 


favor  of  or  ap^ainst  an  applicant  for  an  office,  or  in  ref. 
erenee  to  the  conduct  of  .^n  official,  is  privileged.'  It  in 
not  necessary  that  the  informant  or  memorialist  should  l»o 
in  any  way  personally  aggrieved  or  inj  ired;  for  all  i)or- 
sons  have  an  interest  in  the  pure  administration  of  jus- 
tice and  the  efficiency  of  the  public  service.^  An  action 
for  libel  will  not  lie  without  proof  of  express  malice  fo. 
presenting  to  a  board  of  excise  a  remonstrance  against 
granting  the  plaintiff  a  tavern  license,  charging  him  with 
being  a  professional  pettifogger  and  stirring  up  suits  and 
endeavoring  to  have  justices'  courts  appointed  at  his 
tavern;  So  a  communication  made  by  a  citizen  to  the 
trustees  or  to  a  school  commissioner  in  good  faith  is 
privileged,  although  detrimental  to  the  moral  character 
of  a  teacher.'*  And  so  is  a  petition  to  a  town  council  to 
remove  a  constable.®  So  words  concerning  a  city  attorney, 
that  "he  is  unfit  to  hold  the  office  of  city  attorney;  his 
opinion  is  too  easily  warped  for  money  consideration," 
spoken  by  the  mayor  to  the  city  council,  which  has  power 
to  remove  the  attorney,  are  privileged.'* 

The  privilege  attaches  to  a  petition  while  it  is  being 
circulated  for  signatures  as  well  as  after  it  is  presented.' 


379;  15  AiP  r>ec.  228;  Cook  v.  Hill,  3 
Saud.  ;^'.I;  Van  Wyck  v.  Guthrie,  4 
Duer,  208;  Van  Wyck  v.  Aspiawall, 
17  N.  Y.  190;  Larkiii  v.  Noouan,  19 
Wis.  8'J;  Young  i\  Richardson,  4  111. 
App.  o(i4.  Every  communication  is 
privileged  which  is  "  made  bona  Jide 
with  a  view  to  obtain  redress  for  some 
injury  received,  oc  to  prevent  or  punish 
some  public  abuse.  .  .  .  This  privi- 
lege, however,  must  not  be  abused; 
for  if  sucli  a  communication  be  made 
maliciously,  and  without  probable 
cause,  tlie  pretence  under  which  it  is 
made,  instead  if  furnishing  a  defense, 
will  aggravate  v'le  ca^i  of  the  defend- 
ant": Fairinan  v,  Ives,  5  Barn.  <&  Aid. 
647. 

'  Vanarsdale  v.  Laverty,  69  Pa,.  St. 
103;  Whitney  v.  Allen,  62  111.  472; 
Thorn  V.  Blaachard,   5   Johns.   508; 


Gray  v.  Pentland,  2  Serg.  &  R.  'J3; 
Larkin  v.  Noonan,  19  Wis.  82;  Bod- 
well  V.  Osgood,  3  Pick.  379;  15  Am. 
Dec.  228;  Hairisv.  Huntington,  2 Ty- 
ler, 129;  4  Am.  Dec.  728;  Cook  i'. 
Hill,  3  Sand.  341;  Harwood  v.  Kccch, 
4  Hun,  389. 

'^  Woodward  v.  Lander,  6  Car.  &  P. 
548. 

*  Vandorzee  v.  McGregor,  12  Wend, 
545;  27  Am.  Dec.  150. 

*  Decker  v.  Gaylord,  35  Hun,  584; 
Harwood  v.  Keeoh,  6  Thomp.  &  'C. 
C65;  4  Hun,  389;  Halstoad  v.  Nelson, 
36  Hun,  149. 

*  Kent  V.  Bongartz,  15  R.  L  72;  2 
Am.  St.  Rep.  870. 

'Greenwood  v.  Cobbcy,  Neb.  18S9. 

'  Vanderzee  v.  McGri'gor,  12  Wcud. 
545;  27  Am.  Dec.  156;  Streety  v. 
Wood,  15  Barb.  105. 


2329 


DEFENSES. 


1295 


Bat  a  paper  in  the  form  of  a  petition,  but  not  meant  to  be 
presented,  is  not  within  the  privilege.' 

The  complaint  must  be  made  to  a  person  who  has 
jurisdiction  to  entertain  it,  and  power  to  act  in  the  mat- 
ter." But  if  made  to  the  wrong  person,  thi'ou<^h  the  de- 
fendant's mistake  as  to  the  jurisdiction  of  tlio  iiarticular 
personage  to  whom  he  is  complaining,  this  will  not  take 
the  case  out  of  the  privilege.^  In  an  English  case''  a 
letter  to  the  secretary  at  war,  with  the  intent  to  prevail 
on  him  to  exert  his  authority  to  compel  the  plaintiff  (an 
officer  in  the  army)  to  pay  a  debt  due  from  him  to  de- 
fendant, was  held  privileged,  although  the  secretary  at 
war  had  no  direct  power  or  authority  to  order  the  plain- 
tiff to  pay  his  debt.  "  It  was  an  application,"  said  Best, 
J.,  "for  the  redress  of  a  grievance,  made  to  one  of  the 
kiny's  ministers,  who,  as  the  defendant  honestl}'  thought, 
had  authority  to  afford  him  redress."  But  where  one 
exercises  the  citizen's  right  to  denounce  the  action  of  a 
public  officer,  it  is  unlawful  for  him  to  make  a  false  and 
malicious  charge  of  crir'^e  or  misdemeanor  in  oflSce.® 

Illi'steations.  —  M.  sent  his  servant,  the  plaintiff,  to  the 
defendant's  shop  on  business;  while  there,  the  plaintiff  had  oc- 
casion to  go  into  an  inner  room.  Shortly  after  hr^  left,  a  box 
v/as  missed  from  that  inner  room.  No  one  elsis  liad  been  in 
the  room  except  the  plaintiff.  The  defend-i:.t  thenmpon  went 
round  to  M.'s,  and,  calling  him  aside  into  a  private  room,  told 
hiu)  what  had  happened,  adding  that  the  plaintiff  must  have 
taken  tho  box.  Later  on,  the  plaintiff  came  to  t!ie  defendant's 
bouse,  and  the  defendant  repeated  the  accusation  to  him;  but 
an  laiglish  girl  being  present,  defendant  was  oarcl'ul  to  speak 
in  German.     Held,  that  both  communications  were  privileged, 


'  St.it-  )•.  Burnham,  9  N.  H.  34;  31 
Am.  Doi!.  L>17. 

''  IJl^irg  v.  Sturt,  10  Q.  B.  899; 
Honw  r  V.  LovcUiud,  19  Barb.  111. 
Ttio  iniMicatiori  in  a  newspaper  of  an 
attack  u[M)n  a  person  not  a  candidate 
for  tin:  VDte.s  of  the  people,  l)ut  for 
those  (it  !in  appointing  power,  is  not 
priviiuged:  lluiit  v.  Bennett,  19  N.  Y. 
173. 


»  Soarll  V.  Dixon,  4  Post.  &  F.  250; 
Harrison  v.  Bush,  5  El.  k  B.  Mi; 
Kershaw  v.  Bailey,  1  Ex.  743;  Mc- 
Intyre  v.  McBean,  i:^  U.  C.  Q.  B. 
534. 

♦  Fairman  v.  Ive«,  ~i  Barn.  &  Aid. 
642. 

^  Rowand  v.  De  Camp,  90  Pa.  St. 
493;  Bourreseau  c.  Uoti'oit  etc.  Co., 
63  Mioh.  425;  6  Am,  St.  Rep.  320. 


§1295 


SLANDBB  AND  LTBBL. 


2330 


if  rarde  withotit  actual  malice,  and  in  the  bona  fide  belief  of 
their  truth:   Amann  v.  Damm,  8  Com.  B.,  N.  S.,  597;   29  L.  J. 
Com.  P.  313.     H.  was  T.'s  shopman,  when  he  left  and  went  to 
another  town,  receiving  from  T.  a  good  character  for  steadiness, 
honesty,  and  industry.     Afterwards  T.  found  one  of  his  fomale 
servants  in  possession  of  some  of  his  goods.    When  charged  with 
stealing  them,  she  said  that  H.  gave  them  to  her.     Thereupon 
T.,  though  he  knew  the  girl  was  of  bad  character,  went  to  ll.'s 
relations  and  charged  him  with  felony,  and  eventually  induced 
them  to  give  him  fifty  pounds  to  say  no  more  about  the  matter. 
Held,  that  the  charge  of  felony  was  not  made  bona  fide,  with  a 
just  intention  to  promote  investigation  or  prosecution,  but  with 
a  view  to  a  compromise,  and  was  altogether  unprivileged :  Ff-mj^ 
V.  Truscott,  2  Bing.  N.  C.  457;  2  Scott,  672.     A  lieutenn  J  m 
the  navy  was  appointed  by  the  government  agent  or  superin- 
tendent on  board  a  transport  ship,  the  Jupiter.     He  wrote  a 
letter  to  the  secretary  at  Lloyd's,  imputing  misconduct  and  in- 
capacity to   the  plaintiff,  the   master  of  the   Jupiter.     Held, 
altogether  unprivileged;    the  information   should   have   been 
given  to  the  government  alone,  by  whom  the  defendant  was 
employed:   Ilanvood  v.  Green,  3  Car.  &  P.  141.     A  city  physi- 
cian is  appointed  by  the  city  council,  and  not  elected  by  the 
people.   A  newspaper  charges  that  he  is  guilty  of  unprofessional 
conduct.     Held,  not  privileged,  as  not  made  to  the  proper  au- 
thority, viz.,  the  council,  wlio  had  power  to  remove  him,  but 
the  public,  who  had  not:   Foster  v.  Scripps,  39  Mich.  oTli;  33 
Am.  Rep.  403.     A  professor  of  the  United  States  Naval  Acad- 
emy at  Annapolis  jilaced  his  written  resignation  in  the  hands 
of  the  superintendent  of  the  academy,  to  be  forwarded  to  the 
Secretary  of  the  Navy.    The  superintendent,  being  required  bj 
law  to  indorse  his  opinion  thereon,  indorsed  his  opinion  stating 
why  he  tliouglit  the  resignation  should  be  accepted.    Held,  that 
this  indorscujonc  was  presumptively  a  privileged  communica- 
tion:   Mfiuricc  V.  Warden,  54  Md.  233;  39  Am.  Rep.  384.    The 
mayor  of  a  city,  who  was  ex  officio  chief  of  police,  upon  tlic  in- 
formation of  some  boys  who  had  been  arrested  for  stealing,  called 
at  the  store  of  M.  for  the  purpose  of  finding  the  stolen  goods, 
and   charged  him  with  having  purchased  such  goods,  know- 
ing them  to  bo  stolen.    Held,  a  privileged  communication,  not 
actionable  without  proof  of  malice  in  fact:   Mayo  v.  Sa'-iijk,  18 
Iowa,  3()G.     Certain  citizens  of  a  town  prayed  for  the  removal 
of  a  constable  from  office  on  the  grounds  of  want  of  principle, 
of  ignorance,  and  of  misconduct.      Held,  in  the  constable's 
action  fur  libel,  that  he  must  show  express  malice  as  well  as 
that  the  statements  were  false,  before  he  could  recover:  Keni 
V.    Bongarf:,    15   R.   I.   72;   2   Am.   St.    Rep.   870.     To  pre- 
vent the  licensing  of  an  applicant  as  a  teacher,  persons  inter* 


2331 


DEFENSES. 


§1296 


ested  in  the  school  in  question  represented  to  the  superintend- 
ent, in  a  petition  and  affidavit,  that  the  applicant  was  a  person 
of  bad  moral  character,  and  unfit  to  have  charge  of  a  school. 
Being  sued  by  him  for  libel,  tiiey  justified,  and  showed  that  he 
was  habitually  profane,  and  a  sabbath-breaker.  Held,  that  tho 
communication  was  privileged:  Wievianv.  Mahce,  45  Mich.  484; 
40  Am.  Rep.  477.  Defendants  were  alleged  to  have  signed  and 
caused  to  be  published  in  a  newspaper  a  petition  signed  by 
tlioui  as  tax-payers,  requesting  the  resignation  of  plaintiff,  a 
Cdunty  commissioner,  assigning  as  reasons,  among  others,  "be- 
cause it  is  contrary  to  our  system  of  laws  that  any  uian  should 
?]t  in  judgment  or  pass  upon  any  right,  real  or  imaginary, 
wherein  he  may  have  a  pecuniary  interest,"  "because  your 
action."!  show  you  to  be  a  commissioner  for  [plaintiff]  only,  and 
not  for  precinct  No.  1."  Held,  that  the  statements  were  not 
privileged:  Cotulla  v.  Kerr,  Tex.  1889. 

^  1296.  Common  Interest.  —  A  communication  is  priv- 
ileged where  the  defendant  has  an  interest  in  tho  subject- 
matter  of  tho  communication,  and  the  person  to  whom 
it  's  made  hab  a  corresponding  interest.*  In  a  very  late 
cusL  it  is  laid  down  that  a  libelous  communication  is 
privileged,  if  made  bona  fide,  upon  any  subject-matter  in 
which  tho  party  communicating  has  an  interest,  or  in 


'  Capital  ami  Counties  Bank  v. 
Henty,  L.  R.  5  C.  P.  Div.  514;  Dick- 
son i\  Wilton,  I  Fost.  &  F.  41!);  Mc- 
Doujiall  V.  Claritlgo,  1  Camp.  -'G7; 
Shipley  v.  ToiIImntor,  7  Car.  &  P.  680; 
Spill  r.  Maule,  L.  R.  4  Ex.  T,V2.  "Such 
common  interest  is  generally  a  pecu- 
niary one,  as  that  of  two  customers  of 


mon  interest  in  the  selection  of  fit  and 
proper  conatahles  to  serve  in  the  par- 
ish, their  sal  M-y  being  piiiil  out  of  the 
lates.  So  1  -  .i,ions  by  blo'jJ  or  mar- 
riage have  a  common  interest  in  their 
family  concerns.  But  beyond  this 
there  is  no  privilege.  The  '  connnon 
interest '  must  bo  one  whicli  the  law 


the  same  l)ank,  two  directors  of  the     recognizes  and  aj'preciates.    No  privi- 


saine  company,  two  creditors  of  tho 
aaiiio  (kbtor.  But  it  may  also  be  pro- 
fessional, as  in  the  case  of  two  ollicers 
in  the  same  corps,  or  masters  in  the 
same  school,  anxious  to  preserve  the 
dignity  and  reputation  of  tho  l)ody  to 
which  they  both  belong.     In  short,  it 


lege  attaches  to  gossip,  however  inter- 
esting it  may  be  to  liotli  .<p'.:akjr  and 
hearers.  The  law  never  sanctions 
mere  vulgar  curiosity  or  ofiieious  in- 
termeddling in  the  concerns  of  others": 
Odgera  on  Libel  and  Slander,  2.34. 
Thus  it  has  been  held  that  a  statement 


may  l)o  any  interest  arising  from  the  by  one  member  of  a  cluuch  to  an  jther, 

joint  exercise  of   any  legal  right   or  that  a  third  ineinbir  had  a  \enereal 

privilege,  or  from  the  joint  perform-  disease,  was  not  privileged.    York  v. 

anceoiany  duty  imposed  or  recognized  Johnston,  116  Mass.  4S'2.     A  libelous 

by  the  law.     Thus  two  executors  of  letter  written  by  a  ministoi' to  an  asso- 

tlie  sniue  will,  two  trustees  of  the  same  elation  of  ministers,  of  which  he  is  not 

settlement,  have  a  common  interest,  a  member,  concerning  one  of  its  mem  • 

though   uot  a  pecuniary  one,  in  tlie  bers,    is   not  pri\ilejred:    ShurtletF  v, 

management  of  the  trust  estate.     So  Parker,  130  Mass.  '2U3;  39  Am.  Rep. 

the  rate-payers  of  »  paiish  have  a  com-  454. 


§1296 


SLANDER  AND   LIBEL. 


2332 


reference  to  which  he  has  a  duty,  if  made  to  a  person 
having  a  corresponding  interest  or  duty,  although  it 
contains  criminating  matter  which,  without  this  privi- 
lege, would  be  slanderous  and  actionable;  and  this, 
though  the  duty  be  not  a  legal  one,  but  only  a  moral  or 
social  duty  of  imperfect  obligation.'  But,  as  in  other 
cases  of  qualified  privilege,  the  communication  must  bo 
such  as  the  occasion  warrants,  and  must  be  made  in  good 
faith  to  protect  the  interests  of  both  parties.'^  Again,  the 
defendant  must  not  make  a  wider  publication  than  is 
necessary,*  nor  in  the  presence  of  strangers."*  Conlidoii- 
tial  communications  ruade  in  the  usual  course  of  business, 
or  of  domestic  or  friendly  intercourse,  should  be  liberally 
viewed  by  jurlos.* 

A  creditor  may  comment  on  his  debtor's  mode  of  eon- 
ducting  his  business  to  a  surety  of  the  debtor.®  A  person 
interested  in  ihe  proceeds  of  a  sale  may  give  notiee  to 
the  auctioneer  not  to  part  wi^h  them  to  the  plaintiff,  Avho 
ordered  tlie  sale,  on  the  ground  that  he  has  committed  an 
act  of  bankruptcy.'  The  son-in-law  of  a  lady  has  suf- 
ficient interest  in  whom  she  marries  to  justify  him  in 
warning  her  not  to  marry  the  plaintiff,  if  he  honestly 
believes  liim,  however  erroneously,  to  be  of  bad  charac- 
ter.^ So  the  reports  of  the  directors  and  auditors  of  a 
company  printed  and  circulated  among  the  share-liolders 


'Byam  r.  Collins,  111  N.  Y.  143; 
7  Am.  St.  Rep,  7-'G. 

■'  Pureell  r.  Sowler,  L.  R.  2  0.  P.  D. 
221 ;  Martin  r.  Stroiis?,  5  Ad.  &  E.  5.35; 
Kino  r.  Suwell,  li  Mees.  &  W.  21)7. 
Tims  where  there  are,  say,  a  thousand 
meiuhers  of  a  society,  the  defendant 
ia  not  jii'jtilieil  in  sending  hia  charge? 
to  all  the  iiieinher.s,  where  there  is  a 
managing  committee  or  board  of  direc- 
tors to  which  he  mij,'ht  apply.  Such 
a  claim  of  privilege  would  be  too  large: 
Martin  v.  Strong,  5  Ad.  &  E.  535; 
Hoare  r.  Sdvorlock,  12  Q.  B.  624, 

'  See  last  note. 

♦  Kershaw  v.  Bailey,  1  Ex.  743; 
Scarll  V.  Dixon,  4  Foat.  &  F.  250,     A 


bank  director  is  not  justified  in  miking 
a  comnmnication  to  a  co-diructor  in  tiie 
public  streets,  affecting  tiie  ciiiUt  uf 
a  merchant,  where  there  is  no  (ni'lciioe 
of  such  communication  being  CM.iid- 
dential.  But  he  might  mal<e  mhIi  a 
communication  at  the  board  ot  diiei;- 
tor.s,  in  relation  to  one  of  the  cii.<toiii- 
ers  of  the  bank:  Sewall  v.  C;itiiii,  3 
Wend.  291. 

■'  Stallings  v.  Newman,  2u  Ahi.  'M; 
G2  Am.  Dec.  723. 

*•  Dunmau  v.  Bigg,  1  Camp.  2(17,  note. 

•  Blackham  v.  Fugh,  2  Com.  H.  lill; 
15  Law  J.  Com.  P.  290. 

8  Todd  V.  Hawkins,  8  Car.  &  V.  bS;  2 
Moody  &  R,  20. 


2  not) 


2333 


DEFENSES. 


§1296 


a  person 
thoucrh  it 
;lns  privi- 
ancl   this, 

I  moral  or 
3  ill  other 

II  must  ho 
de  in  good 
Again,  tlio 
11    than   is 

Conlidou- 
)f  business, 
be  liberally 

ode  of  con- 
A  person 
va  notiee  to 
aintiir,  Avho 
mmittedan 
dy  has  suf- 
tify  him  in 
le   honestly 
3ad  charac- 
ditors  of  a 
are-lioldors 


ig 


tifiod  in  in  iking 
o-ilirectorinthe 
t  the  cri'ilit  (if 
o  is  JU)  eviiU'iice 
in  l>eing  tdiid- 
it  mako  siuh  a 
hoard  of  direc- 
f  tlie  cii.nuiii- 
all  V.  Catlin,  3 

,au,  2u  Alu.  ;>00i 

Camp. -207,  note. 
i  Com-  B.  till; 

■JO- 

8Car.&r.i>i';- 


are  privileged.'  A  bona  fide  communication  between  a 
member  of  Parliament  and  his  constituents  on  a  matter 
of  political  or  local  interest  is  privileged;  such  as  a  re- 
port of  any  speech  of  his,  circulated  privately  among  his 
constituents  for  their  information.''  An  officer  at  a  town 
election  may  say  to  the  electors  that  a  person  has  put  two 
votes  in  the  ballot-box.^  Words  spoken  of  a  candidate 
for  office,  in  the  belief  of  their  truth,  and  for  the  solo 
purpose  of  advising  electors  of  whafc  was  believed  to  be 
the  true  character  of  the  candidate,  are  privileged.'* 

All  communications  by  members  of  corporate  bodies, 
olnirches,  and  other  voluntary  societies  addressed  to  the 
hody  or  any  official  thereof,  and  stating  facts  which,  if 
true,  it  is  proper  should  be  thus  communicated,  are 
privileged.^  Where  the  official  authorities  of  the  church 
in  tlie  discipline  of  a  member  act  in  good  faith,  and 
without  malice,  within  the  jurisdiction  conferred  by  the 
laws  of  the  church,  they  are  not  liable  for  language,  oral 
or  written,  used  in  such  discipline.  But  it  is  competent 
for  the  plaintiff  to  prove  that  in  passing  the  resolution 
the  council  was  not  acting  within  its  lawful  authority,  in 
that  he  was  not  served  with  previous  citation,  which  was 
required  by  the  rules  of  the  church.*  The  publication 
hy  a  member  of  a  medical  society  of  a  true  account  of 
the  proceedings  of  that  society  in  the  expulsion  of  another 
member  for  a  cause  within  its  jurisdiction,  and  of  the  result 


'  Lawless  ('.  Anglo-Egyptian  Cotton 
Co.,L.  R.  4Q.  B.  262. 

-'  Davison  V.  Duncan,  7  FA.  &  B. 
2;i3;  'J()  L.  J.  Q.  B.  107;  Wason  v. 
Walter,  L.  R.  4  Q.  B.  95.  Allta;  if 
he  jnililislied  hia   speech   to    all    the 


3  Am.  Dec.  473;  Lucas?'.  Ca.se,  9 Bush, 
297;  York  v.  Pease,  2  (iray,  282;  Vaa 
Wyck  V.  Aspinwall,  17  N.  Y.  190; 
Streety  v.  Wood,  15  Bar)).  105;  Farns- 
worth  V.  Storrs,  5  Cush.  412;  Chap- 
man    V.    Culder,    14    Pa.     St.     3G5; 


wnriil  witli  the  malicious  intention  of  O'Donaghue  v.  MuGovcrn,  23  Wend. 

injuring    the    plaintiif:    R.     r.   Lord,  2();    Haight  v.   Cornell,    15  Conn.  74; 

Afimgilon,  1  Esp.  22G;  R.  v.  Creevey,  Servatius    v.    Pichel,     34    Wis.    292; 

1  Mcioro  &  S.  273.  Landis  v.   Camphell,  79  Mo.  433;   49 

'  Bja.Uey  r.  Heath,  12  Pick.  103;  22  Am.  Rep.  239;  Remington  v.  Cong- 
Am.  Dec.  418.  don,  2  Pick.    310;   m  Am.  Dec.  431; 

*Baysr.  Hunt,  60  Iowa,  251;  State  McMillan    v.    Birch.     I    Binn.   178;  2 

V.  Bali'li,  31  Kan.  465;  Mott  v.  Daw-  Am.   Dec.    426;    Kirpatrick   v.  Eagle 

soil,  40  Iowa,  533.  Lodge,  26  Kan.  384;  40  Am.  Rep.  316. 

'  Jarvia  v.  Hatheway,  3  Johns.  180;  *  Over  v.  Hildebraud,  92  lud.  19. 


§1296 


Slx(VNDER   AND    LIBEL. 


2334 


of  certain  suits  subsecfuently  brought  by  him  against  the 
society  and  its  members  on  account  of  such  expulsion,  is 
privilege'],  although  it  speaks  of  the  expelled  member  as 
"  the  ollender,"  and  remarks  that  "  the  society  has  vindi- 
cated its  action  in  this  case,  and  its  right  to  act  in  all 
parallel  cases." ^  To  present  written  charges  against  a 
member  of  a  society  to  another  for  his  signature  is 
privilogcd.'-^  A  lett^  written  by  a  subscriber  to  a  charity 
to  the  committee  oi  management  of  the  charity  concern- 
ing  the  conduct  of  their  secretary  in  the  management  of 
the  funds  of  the  charity  is  prima  facie  privileged.''  Any 
statement  made  by  a  director  of  a  company  to  his  fellow- 
directors  as  to  the  conduct  and  character  of  their  auditor 
is  privileged,  tht)ugh  it  relates  to  his  conduct  with  refer- 
ence to  another  company  of  which  he  was  secretary,  and 
not  auditor.^ 

If  one  makes  it  his  business  to  furnish  to  others 
information  concerning  the  character,  habits,  standing, 
and  responsibility  of  tradesmen,  his  business  is  not  privi- 
leged,  and  his  statements,  if  untrue,  are  libelous.^  The 
information  respecting  a  mercantile  firm,  communicated 
by  the  defendant  to  a  person  by  whom  he  was  employed 
for  the  purpose,  and  who  was  directly  intoresiod  in 
ascertaining  their  credit,  but  afterwards  printed  by  the 
defendant,  and  furnished  to  the  merchants  having  no 
immediate  interest  in  learning  the  standing  of  the  linn, 
is  not  witliin  the  rule  of  privileged  communications.' 
The    reports  of  the   financial  condition    of  merchants, 


»  Barrowp  v.  Bell,  7  Gray,  301;  66 
Am.  Dec.  4-7'.). 

•■'Stroot^    •-  Wood,  ]r)Bc.rb.  105. 

»  MaiU;i;iii  r.  Braiuwell,  2  Fost.  &  F. 
623. 

*  HarriH  >•.  Thompson,  13  Com.  B. 
33H;  ami  sue  Brooks  v.  Blanshard,  1 
Croinp.  i  M.   779. 

*  C'.m.  V.  Staeuy.  1  Log.  Gaz. 
lU:  raylor  r.  Churck.  8  N.  Y.  452; 
Ormsby  v.  D<iai,'lus3,  .17  N.  Y.  477; 
Faaderlin  v.  Bradstreet,  4()  N.  Y.  188; 


7  Am.  Rep.  322;  Jolinsou  r.  Brail- 
street  Co.,  77  Ga.  17-';  4  Am.  St.  Kep. 
77.  Bat  contra.  Erlier  r.  IJuii.  4  .Me- 
Crary,  160;  Tru.ssell  ;-.  Scuilett, 
18  Foil.  Rep.  414;  Kingslmry  r.  Brail- 
street,  35  Hun,  212;  Look  r.  Brailstreet, 
22  Fed.  Rep,  771:  fitate  i'.  LonsJale, 
48  Wis.  348. 

«  Taylor  v.  Churcli,  1  E.  D.  Smith, 
?T9;  Beaadaley  v.  Tappau,  5  Blatchf, 
407. 


2335 


DEFENSES. 


§  1296 


although  disseminated  in  good  faith  from  an  intelligence- 
offico  b}'  means  of  semi-annual  publications,  in  large 
numbers,  with  weekly  corrections,  are  not  privileged 
communications  within  the  rule;  and  the  publishers  are 
lial)lo  for  any  false  report,  although  honestly  made,  not- 
\vitlistanding  the  libelous  matter  is  in  cipher,  understood 
only  by  tlie  subscribers.  Such  a  communication,  to  be 
privileged,  must  be  confined  to  those  having  an  interest 
in  the  information.*  The  publication  by  a  mercantile 
agency  of  a  notification-sheet,  which  is  sent  to  its  sub- 
scribers irrespective  of  their  interest  in  the  plaintiff's 
standing  and  credit,  is  not  a  privileged  communication, 
and  the  proprietors  are  liable  for  a  false  report  of  the 
plaintiff's  financial  condition  in  such  publication."  So 
if  a  mercantile  agency  makes  misstatements  in  writing 
to  its  customers  about  the  drinking  habits  and  mer- 
cantile character  of  a  merchant,  saying,  for  instance, 
that  he  is  drinking,  and  failing  in  business,  the  company 
may  be  liable,  if  the  written  statements  are  seen  by  the 
clerks  of  the  subscribers,  and  perhaps  by  other  persons.^ 
In  England,  a  circular  letter  sent  by  the  secretary  to  the 
members  of  a  society  for  the  protection  of  trade  against 
sharpers  and  swindlers  is  not  a  privileged  communica- 
tion.* 

Illustrations.  —  Communications  Held  Privileged.  —  D. 
was  a  governor  of  a  public  school  to  which  S.  supplied  meat; 
defendant  told  the  steward  of  the  school,  whose  duty  it  was  to 
examine  the  meat,  that  S.  had  been  known  to  sell  bad  meat. 
//('/(/,  privileged:  Humphreys  v.  Stilwell,  2  Fost.  &  F.  590. 
Several  fictitious  orders  for  goods  had  been  sent  in  A's  name 
to  a  tradesman,  who  thereupon  delivered  the  goods  to  A,  A 
returned  the  goods,  and  being  shown  the  letters  ordering  them, 
wrote  to  the  tradesman  that  in  his  opinion  the  letter  was  in  B's 
handwriting.  Held,  privileged,  as  both  \  and  the  tradesman 
were  interested   in  discovering  the  culprit:  Croft  v.  Stevens,  7 

^  Simderlin  v.  Bradatreet,  46  N.  Y.  '  Johnson  v.  Bradstreot  Co.,  77  Ga. 

1S8;  7  Am.  Rep.  322.  172;  4  Am.  St.  Rep.  77. 

^  King  V.   Patterson,   49  N.   J.  L.  *  Getting   v.    Foss,    3    Car.   &   P. 

417;  GO  Am.  Rep.  G22.  160. 


§  1296 


SLANDER  AND   LIBEL. 


Hurl.  &.  N.  rCO;  31  L.  J.  Ex.  143.  A  had  a  dispute  with  a  water 
company,  which  they  agreed  to  refer  to  "some  rospoctablo 
printer,  wlio  should  be  indifferent  between  the  parties,"  as  arbi- 
trator. Tiu'  manager  of  the  company  nominated  the  plaintiff 
a  printer's  commercial  traveler.  A  declined  to  accept  hini  aa 
arbitrator,  and  when  pressed  for  his  reason,  wrote  a  kttir  to 
the  manager  stating  that  the  plaintiff  had  formerly  been  in  liis 
employment,  and  had  been  dismissed  for  drunkenness.  The 
plaintiff  thereupon  brought  an  action  on  the  letter  as  a  Hbcl 
concerning  liini  in  the  way  of  his  trade:  Held,  privileged,  as 
both  partiof^  were  interested  in  the  selection  of  a  proper  arbi- 
trator: IIohJ)s  V.  Brycrs,  2  Ir.  L.  R.  496.  A  sergeant  in  a 
volunteer  corps  of  which  plaintiff  also  was  a  member  repre- 
sented to  the  committee  by  whom  the  general  business  of  the 
corps  was  conducted  that  plaintiff  was  an  unfit  person  to  bo 
permitted  to  continue  a  member  of  the  corps;  that  he  was  the 
execution(  r  of  the  French  king,  etc.  Held,  privileged:  Bar- 
baud  v.  Jfookham,  5  Esp.  109.  The  auditors  of  a  company 
reported  that  the  manager's  accounts  were  badly  kept,  and 
that  there  was  a  large  deficiency  not  accounted  for;  and  at  the 
general  meeting  this  report,  with  others,  was  submitted  to  the 
share-holders,  and  the  meeting  resolved  that  they  should  ])e 
printed  and  circulated  among  the  share-holders,  which  was 
done.  IJcJ<],  that  the  privilege  attaching  to  such  reports  was 
not  lost  merely  by  the  necessary  publication  of  them  to  the 
compositors,  etc.,  in  the  ordinary  course  of  printing:  Lawless 
V.  Ancjlo-IJfjuptlan  Cotton  Co.,  L.  R.  4  Q.  B.  262.  A  vote  of  a 
county  association  of  Congregational  ministers  reciting  that 
charges  of  untruthfulness,  etc.,  had  been  made  against  one  of 
their  number,  and  withdrawing  fellowship  with  him  until  a  cer- 
tain day,  vtlien  he  was  to  appear  and  vindicate  himself,  or  bo 
disniisscd  from  the  association  without  papers,  was  by  its  order 
published  in  two  Congregational  newspapers.  Held,  privileged: 
Shurtlcff  V.  Stevens,  51  Vt.  501;  31  Am.  Rep.  698.  Plaintiff  was 
treasurer  of  a  certain  city,  and  candidate  for  re-election.  The 
defendants,  being  residents  and  taxpayers  in  such  city,  pub- 
lished a  communication  in  a  paper  published  in  such  city,  of 
Avhich  i\\vy  were  proprietors  and  editors,  charging  tliat  the 
plaintiff  had,  as  appeared  by  certain  official  reports,  faikd  to 
account  for  city  funds  in  his  hands,  and  that  (as  the  plaintiff 
claimed)  he  had  embezzled  a  portion  of  such  funds.  Held, 
privileged:  Marks  v.  Baker,  28  Minn.  162.  Defendant's  wife,  a 
stockholder  in  a  street-railway  company,  informed  her  liusband 
that  she  had  heard  ♦persons  boast  that  a  car  of  the  company 
driven  by  tlio  plaintiff  was  "a  good  dead-head  car"  for  tlieiu, 
and  the  defendant  informed  the  foreman  of  the  company,  who 
thereupon  without  investigation  or  noiice  discharged  the  plaia-< 


2336 


2337 


DEFENSES. 


§1296 


pute  with  a  water 
some   ri'spfctablo 
3  parties,"  us  nrbi- 
lated  the  plaintiff, 
to  accept  liiiM  fi3 
I,  wrote  a  letter  to 
rmerly  boon  in  his 
runkenncRS.     Tlie 
le  letter  as  a  libel 
leld,  privileged,  as 
I  of  a  propcn-  arbi- 
A  sergeant  in  a 
I  a  member  repre- 
ral  business  of  tlie 
unfit  person  to  bo 
(s;  that  ho  was  tho 
d,  privileged:  Bar- 
tors  of  a  company 
•e  badly  kept,  and 
ited  for;  and  at  the 
as  submitted  to  the 
hat  they  should  be 
holders,  which  was 
,0  such  reports  was 
lion  of  them  to  the 
af  printing:  Laidess 
2G2.     A  vote  of  a 
listers  reciting  that 
nade  against  one  of 
ith  him  until  a  ccr- 
icate  himself,  or  bo 
lers,  was  by  its  order 
Held,  privileged: 
698.     Plaintiff  was 
for  re-election.    The 
in  such  city,  pub- 
led  in  such  city,  of 
,   charging  that  the 
ial  reports,  failed  to 
;hat  (as  the  plaintiff 
such  funds.     Held, 
Defendant's  wife,  a 
formed  her  husl)and 
car  of  the  conip^ny 
head  car  "  for  them, 
f  the  company,  who 
iischarged  the  plam^ 


tiff.    Held,  privileged:  Uaney  v.  Trost,  34  La.  Ann.  114G;  44  Am. 
Rep.  461.  Defendants,  having  been  defrauded  of  a  largo  amount 
of  goods  by  persons  with  whom  they  had  reason  to  and  did  be- 
lieve plaintiff  to  be  associated,  prepared  and  signed  a  paper, 
stating  that  they,  with  others,  had  been  "  robbed  and  swindled  " 
bv    plaintiff    and   others,   and    agreeing   to   bear   i)roportion- 
ately  the  expenses  of  a  criminal  prosecution  of  plaintiff  and 
such  others.     The  paper  was  exhibited  to  an  agent  of  one  of 
the  defrauded  persons  for  signature.     Held^  privileged:  Kllnek 
V.  CoUnj.  A%  N.  Y.  427;  7  Am.    Rep.  360.     In  proceedings  by 
R.,  as  the  next  friend  of  a  female  infant,  to  remove  tlie  guardian 
of  such  infant,  the  petition  alleged  as  a  reason  for  such  re- 
moval that  the  guardian  kept  in  his  family  B.,  a  girl  whoso 
"  reputation  is  ruined,  and  she  is  now  an  example  of  shamo  and 
prostitution."     Held^  conditionally  privileged,  although  H.  was 
not  a  party  to  the  record,  and  that  to  render  R.  liable  to  B.  for 
libel,  malice  must  bo  shown:  Ruolxsv.  Backer,  6  Ileisk.  395;  19 
Am.  Rop,  598.     Plaintiff  was  a  candidate  for  re-election  to  the 
office  of  judge.     Defendant  was   president  of  a  committee  of 
citizens  interested  in  securing  the  election  of  proper  persons  ta 
office.    A.  wrote  a  letter  to  defendant,  in  effect  charging  plain- 
tiff with  having  made  possible  a  large  theft  by  his  charge  to  the 
jury  in  a  certain  case,  which,  in  fact,  was  not  tried  in  his  court 
at  all.     Defendant,  who  might  have  ascertained  this,  read  the 
letter  to  the  committee,  several  newspaper  men  being  present, 
who  gave  the  accusation  wide  notoriety.     He  was  not  actuated 
bv  malice.     Held,   that  the    communication   was   privileged: 
Brvj'js  v.  Garrett,  111  Pa.  St.  404;  56  Am.  Rep.  274.' 


*  Throe  judges  dissented,  holding 
that  thu  iuilgo  should  have  left  the 
casa  to  tlic  jui'y.  In  tho  court  lielow 
(vvlio:i:i  jiiilgniont  was  affirmed)  an 
ahlo  opiaion  was  delivered  by  Biddle, 
J,,  wl;o  said:     "In   considering   tho 

E resent  case,  then,  the  fact  must  never 
e  lost  sight  of,  that  the  plaintifl'  here 
was  a  I'luididate  for  public  otfioe.  He 
had  \)x\i  nominated  by  one  political 
party,  hi.,  opponent  by  another.  The 
votes  oF  tlieir  fellow-citizens  were  so- 
licited, and  an  active  and  earnest  can- 
vass made  to  secure  them.  At  this 
time  it  suoms  that  a  number  of  tax- 
payers and  voters  were  in  tho  habit  of 
meeting  together  to  discuss  tho  merits 
of  the  various  candidates,  soliciting 
tlieir  suffrages,  and  on  one  of  tiiese 
occarioiis  the  communication  here 
complained  of  was  received  by  the  de- 
fendant, who  happened  to  bo  their 
chairnuui,  and  iu  the  ordinary  course 
147 


of  business  it  was  read  aloud  by  his 
direction.  It  is  contended  by  the 
plaintiff  that  this  was  not  a  privileged 
communication,  and  that  the  same  law 
siiould  therefore  be  applied  to  the  de- 
fendant as  if  ho  had  aspersed  in  the 
newspaper  tho  character  of  a  wife  or 
daughter  of  a  private  citizen;  that  the 
occasion  gave  him  no more  protection. 
To  hold  this  in  a  country  where  per- 
sons are  elected  by  popular  suffrage, 
and  in  a  case  where  a  man  puts  his 
character  in  issue,  so  far  at  least  as  it 
concerns  his  fitness  for  office,  would 
be  retrograding  to  the  days  when  pros- 
ecution for  libel  were  the  favored  in- 
struments of  tyranny.  It  seems  to 
us  that  if  ever  a  comment  is  privileged, 
it  is  where  the  person  upon  whom  it 
is  made  invites  it.  It  is  a  mistake  to 
suppose  that  this  doctrine  leaves  a  can- 
didate naked  to  his  enemies.  It  putg 
upon  him  the  proof  of  malice,  which 


§  129G 


SLANDER   AND   LIBEL. 


2338 


IlLUSTUATIOXS    (CoNTINUKD).  —  COMMUXTCATTONS    ITF-LD    NOT 

Privilkoed.  —  A  share-holder  in  n  company  summoned  ii  meet- 
ing of  .share-holders,  and  also  invited  reporters  for  the  prcHs  to 
attend.     Charges  were  then  by  him  made  against  one  of  the 
directors  for  his  conduct  of  the  affairs  of  the  comi)any.    Ilrld,  not 
privileged,  because  persons  not  share-holders  wore  presont:  Par- 
sons V.  Surgey,  4  Fost.  &  F.  247.    Plaintiff  and  defendant  wcro 
jointly  interested  in  property  in  Scotland,  to  the  mannger  cf 
which  defendant  wrote  a  letter  principnlly  about  the  pruiwrty 
and  the  conduct  of  the  plaintiff  with  reference  thereto,  hut  also 
containing  a  charge  against  the  plaintiff  with  reference  to  his 
conduct  to  his  mother  and  aunt.    Held,  that  though  the  ]Kirt  of 
the  letter  al)out  the  defendant's  conduct   as   to  the   propertv 
might  be  confidential  and  privileged,  such  privilege  could  not 
extend  to  the  part  of  the  letter  about  the  phiintilf's  concUict  to 
his  mother  and  aunt:  Warren  v.  Warren,  1  Cromp.  M.  &  U.  2n(}; 
4Tyrw.  850.     The  defendant,  the  tenant  of  a  farm,  reiiuired 
some   repairs  to  be  done  at  his  house;  the  landlord's  agent 
sent  up  two  workmen,   the   plaintiff  and   T.     They   made  a 
bad  job  of  it,  the  plaintiff  got  drunk  while  on  the  jjreniises, 
and   the   defendant  was  convinced  from  what  he  heard  that 
the   ])laintiff  had   broken   open   his    cellar-door,    and   drunk 
his  cider.     Two  days  afterwards,  the  defendant  met  the  plain- 
tiff and   T.   together  and   charged  the  plaintiff  with   break- 
ing open   the   cellar-door,    getting    drunk,  and    spoiling  the 
job.   lie  repeated  this  charge  later  in  the  same  day  to  T.  alone, 
in  the  absence  of  the  plaintiff,  and  also  to  the  landlord's  agent. 
Held,  that  the  communication  to  the  landlord's  agent  was  clearly 
privileged,  as  both  were  interested  in  the  repairs  being  properly 
done;  that  the  statement  made  to  the  plaintiff  in  T.'s  pre-senco 
was  also  privileged,  if  not  malicious;  but  that  the  repetition  of 
the  statement  to  T.,  in  the  absence  of  the  plaintiff,  was  unauthor- 
ized and  oflficious,  and  therefore  not  protected,  although  made 
in  the  belief  of  its  truth:   Toogood  v.  Spyring,  1  Cromp.  ^[.  ctR. 
181;  4  Tyrw.  582.     Defendant  made  an  affidavit  that  plaintifl', 
who  had  testified  on  a  trial  before  a  Masonic  lodge,  was  not  to 


is  not  so  difficult  to  establish  as  is  sup- 
posed. If  the  charge  is  shown  to 
have  been  made  wantonly,  or  without 
proper  occasion  or  just  motive  or 
probable  cause,  any  of  those  being 
shown  would  supply  the  malice  that 
is  wanting  to  make  the  privileged  com- 
munication libelous We  think, 

then,  as  this  was  a  communication 
made  by  one  voter  to  other  voters, 
each  having  a  voice  in  the  election  of 
the  candidate,  about  a  matter  of  the 
deepest  interest  to  the  public,   and 


about  which  they  had  a  right  to  Ije  in- 
formed, and  was  made  in  rehition  to  a 
person  seeking  a  public  dlii'je,  wiio 
had  thus  by  offering  lumself  as  a  can- 
didate challenged  scrutiny,  the  judge 
who  tried  the  case  was  right  in  hold- 
ing the  occasion  one  entitiud  to  the 
highest  privilege,  and  that  as  the  plain- 
tiff 's  own  case  did  not  show  malice,  Inii 
most  clearly  rebutted  any  such  impli- 
cation, the  nonsuit  was  properly 
granted." 


2338 

ITeld  not 

ncd  11  tueet- 
ho  proHS  t(» 
Olio  of  tliu 

'.      //(•/(/,  llUi 

resf'nt;  /*"»- 
jntlant  witc 
manager  (f 
ho  proiM-'Hy 
eto,  l)ut  also 
renco  to  his 
h  tlu'  part  of 
.ho   property 
gc  could  not 
's  conduct  to 
M.  &  U.  250; 
.rm,  roiiuirud 
dlord's  agent 
'hey   made  a 
the  prcninscs, 
le  heard  that 
and   drunk 
met  the  plain- 
f  with   break- 
spoiling  the 
ay  to  T.  alone. 
ndlord'H  agent, 
ent  was  clearly 
being  properly 
n  T.'s  presence 
lie  repetition  of 
,  was  unauthor- 
[although  made 
>omp.  M.&R. 
It  that  plaintifl, 
dgc,  was  not  to 


2339 


DEFENSES. 


§1297 


be  bolieved  on  oath.  This  was  at  the  request  of  the  party  on 
trhvl.  Neither  party  to  this  action  was  a  Mason.  Jfrld,  not 
privileged:  Nix  v.  Caldwell,  81  Ky.  29;};  50  Am.  Rep.  IGli.  De- 
fondant  was  a  trader,  and  plaintiff,  one  of  Ids  customers,  and  as 
such  owed  defendant  a  sum  of  money,  fortl)o  payment  of  which 
defendant  applied  to  him.  Plaintiff,  being  unwell,  directed  hia 
wife  to  write  to  defendant,  sending  him  at  tlio  same  time  money 
in  part  payment  of  the  sum  due.  Defendant,  in  reply  to  this 
letter,  wrote  in  reference  to  the  balance  on  a  post-card  (which 
was  transmitted  to  the  plaintiff  through  the  post-olUce)  the  fol- 
lowing:— 

"Dr.  R.  — 1877.— To  amount  for  goods  as  rendered  .  .  .  £11G  2 
"        By  post-office  order  on  account 1    8  0 

r2 

"  Sir,  — Your  plea  of  illness  for  not  paying  this  trifle  is  mere 
moonshine.  We  will  place  the  matter  in  our  solicitor's  liands  if 
we  have  not  stamps  by  return,  if  it  cost  us  ten  times  the  amount. 

"  T.  J.  tfe  Sons." 

Held,  that  assuming  defendant  to  have  an  interest  in  writing 
the  alleged  libel,  a  communication  transmitted  by  means  of  a 
post-card  is  not  privileged:  Robinson  v.  Jones,  4  Ir.  L.  11.391. 
II.,  as  assistant  inspector  of  the  board  of  health  of  New  York 
City,  made  an  official  report,  published  in  a  public  journal,  in 
which  he  recommended  a  certain  kind  of  street-pavement,  giv- 
ing statistics.  E.  caused  a  communication  to  be  published,  to 
the  effect  that  the  statements  in  the  report  were  dictated  by 
parties  interested  in  the  pavement,  and  that  H.  received  a 
reward  for  their  publication.  In  an  action  by  11.  against  E.  for 
Ubel, /teicZ,  that  the  occasion  did  not  justify  an  attack  on  H.'s 
private  character,  and  in  the  absen(;e  of  proof  of  the  truth  of 
the  accusation,  E.  was  liable:  Hamilton  v.  Eno,  81  N.  Y.  116. 
A  newspaper  article  stated  that  a  chairman  of  a  county  com- 
mittee of  a  political  party  "  has  descended  from  the  high  call- 
ing of  a  clergyman  to  the  recognized  champion  and  professional 
defender  of  prostitutes  and  the  lowest  grade  of  criminals  who 

throng  the  audience-halls  of  our  police-courts The  money 

of  the  ring,  of  the  prostitute,  of  the  libertine  and  burglar,  is  all 
alike  to  him,  if  he  is  duly  intent  on  making  money."  Ileldy 
not  privileged:  Barr  v.  Moore,  87  Pa.  St.  385;  30  Am.  Rep. 
3(37. 


§  1297.  In  Self-defense.  —  The  duty  which  puts  a  per- 
son under  an  obligation  to  speak  may  be  one  towards  him- 
self as  well  as  towards  another.     The  law  permits  a  raaa 


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81297 


SLANDER   AND   LIBEL. 


2340 


to  speak  as  well  as  to  act  in  his  own  defense,  under  certain 
circumstances.  It  is  essential,  however,  that  the  occa- 
sion justified  the  words,  and  that  the  speaker  or  writer 
went  no  further  than  was  necessary  to  protect  hiniriclf.' 
Thus  the  occupier  of  a  house  may  complain  to  the  land- 
lord or  his  agent  of  the  workmen  he  has  sent  to  repair 
the  house.''  A  customer  may  call  and  complain  to  a 
tradesman  of  the  goods  ho  supplies,  and  the  manner  in 
which  he  conducts  his  business.'  The  owner  of  a  build- 
ing which  has  been  set  on  fire  may  caution  persons  in  the 
building  against  particular  persons  suspected  of  being 
the  incendiar^  ^  ',■  communicate  to  his  family  his  suspi- 
cions."  Tho  direct  'Vb  of  a  society  for  promoting  female 
medical  educaliop.  nir.y,  in  a  published  report,  caution 
the  public  again"  trusting  a  person  who  had  formerly 
been  employed  to  obtain  and    collect    subscriptions  on 


'  Cooko  V.  Willies,  5  ¥A.  &  B.  328; 
Huntloy  V.  Waixl,  1  Fost.  &  F.  552. 
lu  lJilIing3  V.  Fairbanks,  139  Mass. 
<itj,  "tlie  Jefemlaiit,  claiming  to  have 
lost  money,  accnseil  tlic  plaintiff,  who 
was  in  liis  empiuy,  with  stealing  it. 
Upon  this  accusation  being  made,  tho 
plaintiff,  through  hia  wife,  informed 
one  Leonard  Foster,  with  whom  he 
had  lived  for  many  years  from  his 
boyhood  up,  of  tlie  accusation,  and 
Bought  hi  J  advieo.  Foster  went  to 
the  defendant  and  lunl  an  interview 
with  him,  in  which  tho  defendant  in- 
formed him  of  tho  grounds  upon  which 
ho  made  tho  accusation.  Upon  this 
application  made  to  him  by  tho  plain- 
tiff, Foster  had  such  an  interest  in  tho 
subject  and  duty  to  perform  that  ho 
was  entitled  to  have  the  interview  with 
the  defendant,  and  the  statements 
made  by  the  defendant  upon  tlie  sub- 
ject to  which  the  interview  related 
were  privileged.  During  tliis  inter- 
view the  plaintiff  came  in.  Tho  plain- 
tiff asked  tho  defendant  to  .settle  with 
him  wiiat  he  owed  him,  to  wliich  tho 
flefendant  replied  that  ho  liired  him 
for  a  year.  The  plaintiff  then  said: 
•  You  do  not  want  a  man  who  steals 
your  money,  anil  I  do  not  want  to 
work  for  a  man  who  charges  mo  with 
it'    To  which  the  defendant  replied, 


'I  know  you  took  the  money,  and 
there  is  another  person  who  knows  it, 
also.'  It  is  upon  these  words  so  spDken 
that  tho  plaintiff  relies  as  tlio  .sub.>ita;i- 
tivo  slaudor  for  which  he  brin;^s  this 
action.  Wo  are  of  opinion  th.it  tlieso 
words  were,  under  tho  circumstuices, 

Crivileged,  and  tho  jury  should  liuve 
een  so  instructed.  It  is  of  no  im- 
portance wliether  tho  interview  be- 
tween Foster  and  tho  defeiidatit  luul 
cmlod  or  not.  If  Foster  had  nut  been 
present,  tho  words  were  clearly  juivi- 
I'jged.  The  plaintiff  commenced  tlio 
conversation,  and  introduced  the  sub- 
ject of  the  charge  of  larceny  in;i(le 
against  him.  Tlie  words  used  by  tliii 
defendant  were  spoken  in  this  conver- 
sation, and  tho  mere  fact  tb:it  tlio 
words  were  spoken  in  preseiicc  of 
Foster,  who,  as  tlio  friend  of  tlu;  I'liia- 
tiff,  liad  b';cn  investigating  the  cb;ii;,'o 
ami  had  been  fully  informed  of  all  tiie 
facts  and  circumstances,  did  not  defeat 
tho  privilege." 

'^  Toogood  »'.  Spyring.  1  Cromp.  M. 
&  R.  181;  4Tyrw.  682;  Kiuer.  fSowoll, 
3  Moes.  &  W.  2'J7. 

*  Oddy  V.  Lord  George  Pan  let,  4 
Fost.  &  F.  1009;  Crisp  v.  GiU,  2J  L.  T. 
82. 

*  Lawlcr  v.  Earle,  5  Allen,  22. 

»  Campbell  v.  Bannister,  71)  Ky.  205. 


2341 


DEFENSES. 


r---- 


their  behalf,  but  has  since  been  dismissed,  if  the  cautija 
is  given  in  good  faith,  and  is  required  for  the  protection 
of  tlio  corporation  and  the  public.^  An  advertisement 
warning  the  public  against  the  negotiations  of  notes,  etc., 
alleged  to  have  been  stolen,  is  privileged.''  So  one  who  is 
attacked  in  print  or  by  word  of  mouth  may  retort  in  like 
manner.'  In  Kocnig  v.  Ritchie*  the  plaintiff  was  a  policy- 
holder in  an  insurance  company,  and  published  a  pam- 
phlet accusing  the  directors  of  that  company  of  fraud. 
The  directors  published  a  pamphlet  in  reply,  declaring 
tlio  charges  contained  in  the  plaintiff's  pamphlet  to  be 
false  and  calumnious,  and  also  asserting  that  in  a  suit  he 
had  instituted  he  had  sworn  in  support  of  those  charges 
in  opposition  to  his  own  handwriting.  Cockburn,  C.  J., 
lield  the  directors'  pamphlet  prima  facie  privileged,  saying 
to  the  jury:  "If  you  are  of  opinion  that  it  was  published 
bona  fide  for  the  purpose  of  the  defense  of  the  company,  and 
in  order  to  prevent  these  charges  from  operating  to  their 
prejudice,  and  with  a  view  to  vindicate  the  character  of 
tlie  directors,  and  not  with  a  view  to  injure  or  lower  the 
character  of  the  plaintiff,  —  if  you  are  of  that  opinion, 
and  think  that  the  publication  did  not  go  beyond  the 
occasion,  then  you  ought  to  find  for  the  defendants  on 
the  general  issue." 

But  the  fact  that  an  article  alleged  to  be  libelous  was 
published  in  explanation  of  and  in  reply  to  a  false  article 
published  by  plaintiff  concerning  defendants  cannot  be 
pleaded  in  justification.®  So  the  fact  that  plaintiff  owed 
money  to  defendant  before  her  marriage,  which  she  re- 
fuses to  pay,  exhibiting  great  ingratitude,  does  not  render 
a  (leftimatory  letter  concerning  her  conduct  before  mar- 
riage, written  by  defendant  to  her  husband,  a  privileged 
communication,  though  the  object  was   to   compel  the 


'  Oaasett  v.  Gilbert,  6  Gray,  94. 
'■'  Com.  i\  Featherstou,  9  Phila.  594. 
'  O'Doaoghue  v.  Huasey,  I.  R.  5  C. 
L.  124. 


*  3  Post.  &  F.  413. 
■^  Stewart  v.  Miuuesota  Tribune  Co., 
40  Miuu.  101. 


§  1297 


SLANDER   AND  LIBEL. 


2342 


husband  or  the  wifo  to  pay  the  debt.'  In  an  advertise- 
laont  notifying  the  public  not  to  harbor  or  trust  tlio 
advertiser's  wife  on  his  account,  defamatory  words  ia 
regard  to  the  w^ifo  are  not  privileged.^ 

Illustrations. — The  defendant,  the  manager  of  a  hotel,  wag 
inforinod  by  a  guest  that  the  plaintifT,  a  domestic  employed  iu 
the  hotel,  had  stolen  a  diamond  pin  from  his  room,  wliereiij)ou 
the  defendant  sent  for  the  plaintiff,  and  told  her  what  iho.  guest 
had  said,  and,  in  the  presence  of  the  chambermaid,  charged  the 
plaintifT  with  the  offense.  //c^</,  privileged:  Kcane  \.  SprcKiue, 
19  Cent.  L.  J.  315.'  A  baker  publisiied  in  a  newspaper  that  tlio 
plaintiff,  one  of  his  drivers,  had  "  left  my  emplo}',  and  takon 
upon  himself  the  privilege  of  collecting  my  bills,"  etc.  Ifdd^ 
privileged:  Hatch  v.  Lnne,  105  Mass.  394.  Several  persons 
who  had  been  defrauded  of  a  large  quantity  of  goods  by  fulso 
representations,  having  probable  cause  to  believe  that  the  trans- 
action was  a  criminal  offense,  and  that  the  plaintiff  was  a  party 
to  it,  signed  a  paper,  in  which  they  agreed  to  bear  equally  tlio 
expenses  of  prosecuting  plaintiff  and  others  criminally,  stating 
that  tliey  had  been  "  robbed  and  swindled  "  by  plaintiff  and 
others,  //c/ J,  privileged:  /vZi/ir/f  v.  CoZ/v?/,  IG  N.  Y.  427;  7  Am. 
Rep.  oGO.  A  publication  criticising  plaintiff,  a  teacher,  charged 
her  with  over-devotion  to  details  and  with  an  impatient  and  a 
vacillating  disposition.  The  criticism  spoke  favorably  of  her 
skill.  Defendant  was  superintendent  of  schools,  and  had  boon 
attacked  by  plaintiff,  who  lost  her  situation  through  defendant, 
and  he  allowed  the  publication  to  be  made.  Heldf  that  an  action 
for  libel  could  not  be  maintained:  O'Connor  v.  SiiZ,  60  Mich.  175. 
A  trader  employed  an  auctioneer  to  soil  off  his  goods,  and 
otherwise  so  conducted  himself  that  his  creditors  concluded 
that  he  had  committed  an  act  of  bankruptcy.  One  of  thom,  the 
defendant,  sent  the  auctioneer  a  notice  not  to  pay  over  the  pro- 
ceeds of  the  sale  to  the  trader,  "  he  having  committed  an  act 
of  bankruptcy."  Held,  privileged,  being  made  in  defense  of 
defendant's  own  interests:  BlacMam  v.  Purjh,  2  Com.  !>.  (Ill; 
15  L.  J.  Com.  P.  290.     Defendant  had  dismissed  plaintiff  from 


•  Deals  ?>.  Thompson,  Mass.  1889. 

*  Smith  V.  Smith,  Mich.  1889. 

'  "  Tho  communication  had  its  origin 
in  the  confidential  relation  existing 
between  the  parties,  and  emanated  from 
one  whom  the  defendant,  under  the 
circum'stancea,  had  tho  rightto  believe. 
Privitej;cd  comra  nications  compre- 
hend all  Htatements  made  bona  fide  in 
tlie  performance  of  a  duty  or  with  a 


fair  and  reasonable  purpose  of  protect- 
ing tho  interest  of  tho  person  iiiakiiig 
them.  The  communication  Jiiadu  liy 
the  defendant  comes  withiu  tlio  pni- 
tection  of  this  rule.  Wliat  tlio 
defendant  said  was  in  perforiiiiru'o  of 
a  duty  he  owed,  not  only  to  tliuguost, 
but  to  the  good  reputation  and  man- 
agement of  the  hotel  uudur  Lis 
charge." 


2343 


DEFENSES. 


§  1207 


his  sorv'ioe  on  suspicion  of  theft,  and,  upon  plaintiff  ooni in cc  for 
his  Wiigos,  called  in  two  other  of  his  servants,  and,  addn^ssing 
tliem  ill  the  presence  of  the  ])laintiH',  said:  "  I  have  disiuissed 
that  man  fur  robhing  mc;  do  not  speak  to  him  any  mori',  in 
public  or  in  private,  or  I  shall  think  you  as  bad  as  him."  Ifrld^ 
privileged:  Soinrrvillc  v.  Ifoivlhii^,  10  Com.  IV  5S8;  20  L.  J_ 
Com.  I'.  131.  W.,  having  lost  certain  bills  of  cxcban^'c,  j)ub- 
hshed  a  handbill  offering  a  reward  for  their  recovery,  :ind  add- 
ing that  he  J)elievcd  that  they  had  been  embezzled  by  bis  (derk. 
The  clerk  was  still  in  his  ofiice.  ITehl,  that  the  latter  part  of 
the  handbill  was  not  privileged:  Finden  v.  WestMe,  Moody  & 
M.  4G1.  Defendant  claimed  rent  of  plaintiff;  plaintid's  agent 
told  defendantthat  plaintiff  denied  his  liability;  defendaiil  there- 
upon wrote  to  t  be  agent,  alleging  facts  in  support  of  Ills  claim,  and 
adding,  "  This  attempt  to  defraud  me  of  the  produce  of  tli«.'  land 
is  as  mean  as  it  is  dishonest."  Held,  not  privileged:  T anon  v. 
Evftiin,  12  Ad.  &  E.  73t'J.'  Defendant  was  a  candidate  for  Par- 
liament. Shortly  before  the  election,  the  Farmers'  Association 
published  in  the  Freeman's  Journal  an  address  to  the  con- 
stituency describing  the  defendant  as  ''  a  true  type  of  a  bad 
Irish  landlord,  —  the  scourge  of  the  country,"  and  charging 
him  with  various  acts  of  tyranny  and  oppression  towards  his 
tenants,  and  especially  towards  the  plaintiff,  one  of  his  former 
tenants.  The  defendant  thereupon  published,  also  in  Freeman's 
Journal,  an  address  to  the  constituency,  answering  the  charges 
thus  brought  against  him,  and  in  so  doing  necessarily  libeled 
plaintiff.  Held,  that  the  address,  jeing  an  answer  to  an  attack, 
was  privileged:  Dwyer  v.  Esmonde,  2  Tr.  L.  R.  243,  reversing 
Ir.  R.  C.  L.  542.  Plaintiff,  a  barrister,  attacked  a  bisliop  before 
a  legislature  in  an  argument  against  a  bill,  imputing  to  tho 
bishop  improper  motives  in  his  exercise  of  church  patronage. 
The  bishop  wrote  a  charge  to  his  clergy  refuting  these  insinua- 


'  Tho  court  saying:  "Some  remark 
from  tho  tlefeudaiit  on  tho  refiis  il  to 
pay  tho  rent  \v;ia  perfectly  justifiable, 
Iwcause  liij  cntiro  silence  miyht  liave 
been  Odustrucil  into  an  aciiuiesceucc 
i.i  thit  refusal,  and  so  might  have 
prujudiceil  his  case  upon  any  future 
claim;  and  the  defendant  would, 
thcrefiiru,  liave  been  privileged  in 
denying  the  truth  of  the  plaintiflf's 
stateiuont.  But,  upon  consideration, 
we  are  of  opinion  that  the  learned 
jii(lgi>  was  (juite  right  in  considering 
the  liiiguago  actually  used  as  not 
justiliotl  by  tiie  occasion.  Any  one, 
iu  tin;  transaction  of  business  with 
another,  has  a  right  to  use  language 


bona  jide,  which  is  relevant  to  that 
bu.siness,  and  which  a  due  regard  to 
his  own  interest  makes  necessary, 
even  if  it  should  directly  or  by  ita 
consequences  be  injurious  or  painful 
to  another;  and  this  is  tho  principle 
on  which  privileged  communication 
rests;  but  defamatory  comments  on 
tho  motives  or  conduct  of  the  party 
witli  whom  he  is  dealing  do  not  fall 
within  that  rule.  It  was  enough  for 
the  defen<lant  3  interest,  in  the  present 
case,  to  deny  tlie  truth  of  the  plaintiflTa 
assertion:  to  characterize  that  asser- 
tion as  an  attempt  to  defraud,  and 
as  mean  and  dishonest,  was  wholly 
unnecessary. " 


§  1298 


SLANDER  AND   LIBEL. 


2344 


tions,  and  sent  it  to  the  newspapers  for  publication.  IlehJ,  that 
tlio  bitshop  was  justified  in  sending  the  charge  to  the;  news- 
paper, Tor  an  attack  made  in  poblio  required  a  public  answer: 
Lniujhton  v.  Bishop  of  Sodor  and  Man,  L.  R.  4  P.  C.  '[UF). 
A  exjiressed  an  opinion,  founded  on  the  statement  of  others, 
that  r>  had  maUciously  killed  his  horse,  and  was  arraignoil 
therefor  by  B  before  the  church.  In  self-defense,  A  produced 
the  certificates  of  the  individuals  upon  whoso  authority  ho  made 
the  statements.  Held,  privileged:  Dunn  v.  Winters,  2  Iliiiuph. 
612.  At  a  vestry-meeting  called  toelect  fresh  overseers,  plaintiff 
accused  defendant,  one  of  the  outgoing  ovei^jcers,  of  n(,gloct- 
ing  the  interests  of  the  vestry,  and  not  collecting  the  rates;  the 
defendant  retorted  that  the  plaintiff  had  been  bribed  by  a  rail- 
way company.  Held,  that  the  retort  was  a  mere  tu  qnoipic,  in 
no  way  connected  with  the  charge  made  against  him  by  the 
plaintifi",  a. id  was  therefore  not  privileged,  for  not  having  been 
made  in  self-defense:  Senior  v.  Mcdland,  4  Jur.,  N.  S.,  1UI>9.  A 
wrote  to  li  that  C,  by  lying,  had  got  possession  of  certain  goods, 
and  tliat  if  IJ  would  withhold  from  his  indebtedne-^ 3  to  C  the 
amount  claimed  by  A,  A  would  not  claim  a  lien  c  the  goods. 
C  was  IVs  servant,  and  B  claimed  the  goods.  Held,  not  priv- 
ileged:  Over  V.  Schiffling,  102  Ind.  191. 

§  1298.  Reports  of  Judicial  Proceedini^s.  —  T}io  pub- 
liciitioii  of  reports  of  proceedings  in  the  courts  is  privi- 
leged;* for  "the  general  advantage  to  the  country  in  having 
these  proceedings  made  public  more  than  counterbalances 
the  inconvenience  to  private  persons  whose  conduct  may 
be  the  subject  of  such  proceedings."  ^  The  rule  is  the 
same  whether  the  report  is  published  by  a  private  person 
in  a  pamphlet  or  by  a  newspaper.*  The  privilege  extends 
to  proceedings  which  take  place  publicly  before  a  magis- 
trate on  the  preliminary  investigation  of  a  criminal  cluirge,* 
to  proceedings  held  in  jail  before  a  registrar  in  bankruptcy, 
under  a  bankruptcy  act,  upon  an  examination  of  a  debtor 
in  custody,®  and  to  proceedings  in  the  nature  of  trials  ia 


»  Usill  V.  Hales,  L.  R.  3  Com.  P.  Div. 
319;  Acliermauw.  Jouoa,  37  N.  Y.  Sup. 
Ct.  42. 

•^  R.  V.  Wright,  8  Term  Rep.  298; 
Storey  z'.  Wallace,  60  111.  51;  Saunders 
V.  Laxtcr,  G  Heisk.  369;  Torrey  v. 
Field,  10  Vt.  353;  Cinn.  Gazette  Co. 


V.  Timberlake,  10  Ohio  St.  548;   78 
Am.  Dec.  285. 

*  Cooley  on  Torts,  219;   Odgors  on 
Libel  and  Slander,  251. 

*  Lewis  V.  Levy,  El.  B.  &  E.  537. 
^Ryalla  v.  Leader,  L.  R.  I  Ex, 

S96. 


2344 

Held,  that 

tin;  IX'WS- 

io  answor: 
P.  C.  4iJ5. 
of  others, 
arraiguc'il 
V  pnnlucod 
ty  ho  nuido 
'2  Iluinph. 
irs,  phiinliff 
of  nt'gloct- 
c  rates;  the 
d  by  a  rail- 
II  qvoipic,  in 
liim  by  the 
lavinp;  been 
S.,  10;'>0.    A 
;rtain  goods, 
e'3  to  C  the 
the  goods. 
'M,  not  priv 


-The  pub- 
is ia  privi- 
•y  in  having 
terbalances 
ouduct  may 
rule  is  the 
vato  person 
"lege  extends 
)re  a  magis- 
liiul  charge,* 
inkruptcy, 
of  a  debtor 
of  trials  in 


2345 


DEFENSES. 


g  1298 


■110 


St.  548;   73 


voluntary  associations,  as,  for  example,  a  medical  so- 
ciety.^ 

But  where  the  hearing  is  merely  ex  parte,  11u>  privilege 
does  not  attach,  at  least  beyond  the  publi.shin'j;  of  the  fact 
that  the  charge  has  been  made.''  The  publication  of  the 
contents  of  a  petition  for  tho  disbarment  of  iin  attor- 
ney iiled  in  vacation,  and  not  presented  or  docketed,  ia 
not  privileged.'     No  privilege  attaxihes  to  tho  report  of 


|219;   OJgera  on 

B.  &  E.  537. 
L.  R.  1  Ex. 


»B.irrows  v.  Bell,  7  Gray,  301;   66 

Am.  Dl'c.  479 

•J  Cuolcy  ou  forts,  218;  Huflfr.  Ben- 
nett, 4  Sand.  1'20;  Staulcy  v.  Webb, 
4  Saud.  Yl;  Matthews  v.  Beach,  5 
Saiul.  250;  Uoher  v.  Severance,  20 
Me.  \);  37  Am.  Dec.  3;?;  Tresca  v. 
Madilox,  11  La.  Ann.  20G;  C(i  Am. 
Dec.  I'JS;  Ciiiii.  Gazette  Co.  v.  Tiui- 
berlake,  10  Ohio  St.  548;  78  Am.  Dec. 
285.  Contra,  Mclieu  v.  Fulton,  4G 
MJ.  40:i;  28  Am.  Kcp.  405.  In  Barber 
I'.  St.  Loiiid  Di.spatch  Co.,  3  Mo.  App. 
377,  tlio  court  say:  "  VVhcro  a  court 
or  pul)Iic  magistrate  ia  sitting,  pub- 
licly, a  fair  account  of  tho  whole  pro- 
cuciliiii;^,  uucolorcil  by  defamatory 
coniineat  or  insinua'„ion,  is  a  privi- 
leged couimuuication,  whether  tho 
proceedings  aro  on  a  trial  or  on  a 

Kreluiiiaary  and  e.r  parte  hearing. 
ut  tho  very  terms  of  tho  rule  imply 
that  there  must  bo  a  liearing  of  some 
kiud.  In  order  that  tho  ex  parte  na- 
ture of  tho  proceedings  may  not  destroy 
the  privilege,  to  prevent  such  a  result 
there  must  be  at  least  so  much  of  a 
pubUc  investigation  as  is  implied  in  a 
Buhiiii-nsion  to  tho  judicial  mind  with 
a  view  to  judicii'l  action."  In  England, 
in  the  case  of  Lewis  v.  Levy,  El.  B.  & 
E.  5;)7,  it  was  held  that  a  report  of 
&  preliminary  investigation  before  a 
ma^'i^it  rate  was  privileged,  if  the  result 
was  tliat  tho  summons  was  dismissed 
aud  tlio  person  accused  discharged. 
In  Duncan  v.  Thwaites,  3  Barn.  &  C. 
55G,  5  Dowl.  &  R.  447,  it  was  held 
that  audi  a  report  was  unprivileged, 
if  tlioaccused  be  ultimately  sent  to  tako 
his  trial  lie  tore  a  jury.  InUsillw.  Hales, 
3  Com.  P.  Div.  319,  tho  magistrate 
on  an  vx  parte  application  decided  that 
ho  had  no  jurisdiction,  and  declined 
to  imae  a  summoua.    The  court  held 


that  this  was  a  judicial  proceeding, 
and  that  a  report  of  it  imlilislied  by 
tho  defendants  was  pfivvJi!L;t;d.  In 
delivering  tho  judgment  of  tlio  court, 
Coleridge,  C.  J.,  sai'!:  'It  was  at- 
tempted to  distinguish  tiiis  case,  and 
to  bring  it  within  an  alK^.Til  ipialiiica- 
tion  of  tho  rule  by  blmwing  this  to 
have  been  an  ex  part''  proceeding  bo- 
fore  a  magistrate.  Sixty  or  seventy 
years  ago  this  argunuait  inigiit  iiave 
prevailed.  From  the  casus  cited  in 
otarkio  on  Libel,  4th  ed..  pp.  107  ct 
eeq.,  the  rule  seems  to  have  been  es- 
tablished that  an  ex  p,irtft  proceeding 
was  not  privileged,  o.i  account  of  the 
hardship  which  wouM  ollurwiso  en- 
sue to  tho  party  lil)cLi1,  and  this  was 
adopted  in  Duncan  r.  Tliwaitci.  But 
sine.)  that  time  tho  c(firt:j  have  come 
to  couclusions  irrccoivcilable  with  those 

CbLSCS 

»  Cowley  V.  Tulsifcr,  137  Mass.  392, 
50  Am.  Rep.  318,  thj  court  sajnng: 
"It  is  desirable  that  tho  trial  of 
causes  should  take  placo  under  the 
public  eye,  not  b'-'caiiso  tho  contro- 
versies of  ono  citii:cii  \:[t\\  another  are 
of  public  concern,  but  because  it  is  of 
the  highest  moment  tliat  tlioso  who 
administer  justice  shtuil  1  always  act 
under  the  senso  of  public  rcKiionsi- 
bility,  and  that  evLiy  citizen  should 
bo  able  to  satisfy  Iumim;!!'  mmiIi  his  own 
eyes  as  to  tho  mode  in  which  a  public 
duty  is  performed.  It  thcs^j  are  not 
the  only  grouiKls  upon  which  fair 
reports  of  judicial  jirocecdiiigs  aro 
privileged,  all  will  as^rco  that  they  are 
not  the  least  impori.Lut  ones.  And  it 
is  clear  that  they  have  no  application 
whatever  to  tho  oontoiits  of  a  ]ireliia- 
inary  written  statemeafc  of  a  cliiui  or 
charge.  These  do  not  coastituto  a 
proceeding  ia  open  court.    Knowledge 


1298 


SLANDER  AND   LIBEL. 


2346 


unsworn  statements  made  by  a  by-stander  at  an  inqiK  ,^t/ 
and  it  has  been  held  that  the  publication  of  a  .slandiT 
uttered  by  a  murderer  at  the  time  of  his  exoculion  is  not 
privileged,  either  under  the  statute  law  of  New  York  or 
under  the  common  law.  The  statute  of  New  York  rclatos 
only  to  statements  made  in  judicial,  legislative  or  admin- 
istrative bodies,  in  the  execution  of  some  public  duty.^ 
The  privilege  does  not  attach  where  the  subject-matter  of 
the  trial  is  indecent,  obscene,  or  blasphemous,''  or  wliero 
the  court  has  prohibited  the  publication.'* 

The  report  must  be  accurate;  it  need  not  be  verbal im, 
but  where  it  is  abridged  or  condensed,  it  must  bo  correct; 
it  may  not  omit  what  is  favorable  to  the  plaintiff  and  con- 
tain what  is  unfavorable.  In  other  words,  it  must  bo 
substantially  what  took  place.''  A  newspaper  report  of  a 
criminal  trial  must  bo  a  fair  and  impartial  report  of  what 
took  place  with  reference  to  its  effects  on  the  defendant's 
character.  If  a  verbatim  report  would  have  the  same 
effect  on  his  character  as  the  abridged  one,  the  abridL^^od 
report  is,  so  far  as  the  defendant  is  concerned,  a  faii-  and 
impartial  one.  Whether  it  is  such  a  report  or  not  is  a 
question  for  the  jury."  And  the  publication  of  judicial 
proceedings  is  not  privileged  to  the  extent  of  protecting 
statements  made  in  connection  therewith,  but  drawn 
from  other  sources,  and  without  stating  the  judicial  con- 


of  tliom  throws  no  light  upon  the  ad- 
ministration of  justice.  Both  form 
and  contents  deiuind  wholly  on  the 
will  of  a  private  individual,  who  may 
not  be  even  an  officer  of  the  court.  It 
would  be  carrying  rrivilego  further 
than  we  feel  proi>a'  ed  to  carry  it,  to 
say  that  by  tlic  easy  means  of  cnti- 
tliu^  and  tiling  it  in  a  cause  a  sufficient 
foundation  may  bo  laid  for  scattering 
any  libel  broadcast  with  impunity: 
•See  8anford  v.  Bennetl,  20  N.  Y.  20, 
27;  Lewis  v.  Levy,  EI.  B.  &  E.  537r 
Barber  o.  St.  Louis  Dispatch  Co.,  3 
Mo.  App.  377." 

•  Lynam  i-.  (j owing.  6  Ir.  L.  R.  259. 

"  Sauford  v.  Bennett,  24  N.  Y.  20. 


'I.  e.,  the  general  publie.itidii  of 
such  matters,  lleports  of  .sutli  trials 
in  legal  or  medical  journals  oi-  linoljs, 
accessible  only  to  and  for  tin;  luMclit 
of  the  respective  professions,  would 
stand  on  a  different  footing. 

*  This  power,  once  frc(iuciitly  rxor- 
cised  in  England,  is  said  now  to  bo 
rarely  exercised:  Brook  v.  Kvain,  -9 
L.  J.  Ch.  GIG;  Lewis  v.  Levy,  Kl.  B. 
&  E.  3G0. 

*  Andrews  v.  Chapman,  3  Car.  &  K. 
287;  Duncan  v.  Thwaitcs  3  Bun.  & 
C.  580;  Saunders  v,  Ba.xter,  (i  Ikisk. 
369;  Salisbury  v.  Union  Advuitiaer 
Co.,  45  Hun,  120. 

«  Boogher  v.  Knapp,  97  Mo.  122. 


231G 


2347 


DEFENSES. 


g  1208 


inqviest/ 
a  slandiT 
ion  is  not 
;  York  or 
)rk  ri'lato3 
or  admin- 
blic  duty.* 
t-iuuttov  of 
,'  or  where 

0  vcrhnllm, 
1;)0  cornM't; 
iff  and  con- 
it  must  1)0 
report  of  a 
:>ort  of  what 
defendant's 

0  the  same 
ho  abridged 
I,  a  fair  and 

or  not  is  a 

1  of  judicial 
f  protecting 
I,  but  drawn 

udicial  con- 


elusion.'  A  report  is  not  privileged  whi(  h  does  not  givo 
the  evidence,  but  raorcly  sets  out  the  circuni.stanci's  "  as 
stated  by  the  counsel "  for  one  party,"  Siill  less  will  it 
bo  privileged  if  after  so  stating  the  ease  the  only  account 
given  of  the  evidence  is  that  the  witnesses  "  proved  all 
tliat  had  been  stated  by  the  counsel  for  the  prosecution."*' 
Xor  whero  it  is  accorapanied  by  sensational  h«>adings  not 
jiistilied  by  the  evidence/  or  by  sensational  or  d(>fania- 
tury  comments  upon  the  characters  of  those  in  relation 
fo  whom  the  proceedings  arc  taken.*  And  it  must  bo 
t^triclly  coniined  to  the  actual  proceedings.  The  report 
must  not  contain  comments  of  tho  writer  insinuating  bad 
motives,  or  that  the  plaintiff  committed  perjury,  or  tho 
like.''  So  a  statement  made  upon  tho  authority  of  a  news- 
paper, and  not  purporting  to  be  a  report  of  proceedings  of 
a  court,  is  not  privileged,  and  tho  re?<ponsibilliy  therefor 
cannot  be  evaded  by  an  offer  of  proof  that  the  libel  was  in 
tact  matter  of  evidence.'  The  publication  of  a  statement 
ma<le  by  a  justice  of  what  had  been  said  by  persons  apply- 
iiigto  him  for  a  warrant,  which  statements  do  not  appear 
in  any  affidavit,  nor  were  made  as  part  of  a  hearing,  are 
not  privileged.* 

As  the  privilege  is  only  qualified,  the  defendant  is  lia- 
Llc,  though  the  report  be  fair  and  accurate,  if  it  was 
nevertheless  maliciously  published,"  or  if  it  contain 
intrinsic  evidence  that  it  was  not  published  with  good 
motives  or  for  justifiable  ends.'"  In  the  case  of  a  reporter 
or  one  connected  with  tho  paper,  this  will  be  hard  to 

'  Bafhrick  v.  Detroit  Post  and  Pub-  Pittock  v.  O'Neill,  C3  Pa.   St.  253;  3 

lisliiaiiCo.,  50  Mich.  629.  Am.  Rep.  544;    M.Iiuo  v.  Fiilton»  47 

-;Saiiii(ler.s  v.  Mills,  G  Biag.  21.3;  3  Md.  403;  28  Am.   Kei).  4(ir);    Tliomaa 

Moon;  it  P.  520;  VVoodgate  v.  Ridout,  v.  Cro.swcll,  7  Johns.  2()4;  5  Am.  Dec. 

4  Fost.  &  F.  202.  2G9;    SUnley  /•.   Wol)l),   4    Sand.   21; 

''  L'wu  V.  Walter,    4  B.  &  Aid.  605.  Edsall  c.  Brooks,  26  How.  Pr.  426. 

♦Lewis    V.    Levy,    El.  B.  &  E.  537;  '  Storoy  v.  Wallace,  60  111.  51. 

BdVilcll  (I.  Jouea,  4  Meea.  &  W.  446;  *  McDermott    v.    I'^uuing    Journal 

flmiiout  p.  Lewis,  3  Brod.  &  B.  297.  Ass'n,  43  N.  J  L.  4SS. 

"  Soripps  V.  Reilly,  38  Mich.  10.  •  Stevens  v.  Saniy.son,  L.  R.  5  Ex. 

'Aiulruwa  v.  Chapmau,  3  Car.  &  K.  Div.  53. 

■Siij  iStilea   v.   Nokes,   7  East,  493;  ^*  Saunders  v.  Baxter,  6  Ueisk.  3G9. 


§  1298 


SLANDER  AND  LIBEL. 


2348 


prove.  IIo  would  bo  acting  only  in  the  lino  of  his  duly 
when  making  tlie  report  to  llio  paper.  But  a  mere  vol- 
unteor  will  ho  liable  in  such  a  case,  malice  being  proved.' 
The  question  whether  it  is  a  fair  report  is  ono  for  the 
jury  .2 

Illustrations.  —  The  report  of  a  trial  sot  out  the  Rpnocli  for 
the  counsel  for  tho  prosecution,  and  then  added:    '•'riutlirst 
witness  was  U.  P.,  who  proved  all  that  had  been  Htatcul  by  tho 
counsel  for  the  prosecution, "  but  owing  t^t  the  absenco  of  a 
piece  of  formal  evidence  in  no  way  bearing  on  the  lucMits  of  tlio 
case,  "  tin;  jury,  under  the  direction  of  the  learned  judge,  ni  ro 
obliged  to  give  a  verdict  of  acquittal,  to  the  great  regret  of  a 
crowded  court,  on  whom  the  statement  and  the  evidence,  so  far 
as  it  went,  made  a  strong  impression  of  their  guilt."    lldd^ 
not  privileged:  Lewis  v.  Walter,  4  Barn.  &  Aid.  GUo;   liDbrrh^  v. 
Brown,  10  Uing.  519;    4  Mooro  &  S.  407.     The  captain  of  a 
vessel    was   charged   before   a    magistrate   with   an    imlecdit 
assault  upon  a  lady  on  board  his  own  ship.    A  newspaper  ]>ub- 
lished  a  report  of  the  case,  interspersed  with  comments  uhich 
assumed  the  guilt  of  the  captain,  commended  the  coti(hu't  of 
the  lady,  and  generally  tended  to  inflame  the  minds  of  the  jml)- 
lie  violently  against  the  accused.     Held,  not   privileged:  /,'.  v. 
FMier,  2  Camp.  5GlJ.     On  an  examination  into  tho  suiuciiiicy 
of  sureties   on   an  election  petition,  affidavits  were  i)ut  in  to 
show  that  one  of  them  (the  plaintiff)  was  embarrassed  in  liis 
aflairs,  and  an  insuilicient  surety.     A  newspaper  rejK)rt  of  the 
examination  proceeded  toask  why  the  plaintiff,  being  wholly  un- 
connected with  the  borough,  should  take  so  much  trouble  aliuiit 
the  matter.     "  There  can  be  but  one  answer  to  these  very  natural 
and  reasonable  queries — he  is  hired  for  the  occasion."  Hdil.  not 
privileged:  Cooper  \\  Lnwson,  8  Ad.  &  E.  74G.    A  petition  for  di- 
vorce wac  filed  in  the  circuit  court  against  plaintifl",  charging  licr 
with  adultery.     Defendant,  before  the  petition  was  brougiit  lie- 


'  Stc%'ou3  V.  Sampson,  L.  R.  5  Ex. 
Div.  r);j. 

^  Risk  Allah  IJey  v.  Whitcliurst,  18 
L.  T.  Gl');  Sticct  I'.  L.  V.  Soc,  22 
Week,  lic'p.  5o;3.  lu  an  English  case 
the  report  of  a  criminal  trial  gave 
tho  spoech  for  the  prosecution,  a 
brief  r^.-nirnd  of  the  speech  of  tho 
prisoner's  counsel,  who  called  no  wit- 
nesses, and  tiio  whole  of  tiie  lord 
chief  baron's  summing  up  in  extemo; 
but  it  did  not  give  tho  evidence, 
except  in  so  far  as  it  was  detailed 
ia  tlio    judge'a    auuiming    up;   Lord 


Coleridge,  C.  J.,  huld  tlio  I'oijort 
uccessarilyunfair,  because  iiicoiiiiiloto, 
and  refused  to  leave  the  ()uu.sj(iii  of 
fairness  to  tho  jury.  But  t'lo  cuuit  of 
appeal  held  that  he  w.ii  m  ron^  in  sn 
doing;  that  it  is  suthrioiifc  to  imlilisli  a 
fair  abstract  of  the  tri.d,  aud  lliiit  t!ie 
judgeV  summing  up  w.is  i)ri:niiii;ilil}r 
such  an  abstract;  that  tho  (luistioii  "t 
iairnes3  nuist  be  left  to  llio  jiu-y,  nnl 
that  therefore  there  nuisL  lu)  ,i  n.w 
trial:  Milissich  t'.  Lloyils,  4G  L.  J. 
Com.  P.  404;  13  Cox  C.  C.  575. 


2348 


2349 


DEFENSES. 


§  1299 


af  his  duty 
I  mevo  vol- 
\\>r  provoJ.' 
ouo  for  lUo 


liG  Bpocch  for 
I:  '•  The  first 
stated  liy  the 
iibsL'iico  of  a 
uKJfits  of  Iho 
,1  jiulgi',  were 
at  rc'r^ret  of  a 
videnco,  so  f;ir 
puilt."     llrld, 

captain  of  a 
an    iiuk'c(nt 
lowspapor  ]nib- 
niiuents  wiikh 
,ho  cotxluoi  of 
nds  of  the  ])ul)- 
rivileged:  A',  v. 
tho  MiIikiiMicy 
were  ])ut  in  to 
)an-assed  \u  his 
}r  report  of  the 
eing  Nvliolly  un- 
h  tremble  ;ii'uut 
-'S''^  verv  nrttiu'iil 

;"ion."  '1I<  '■['■  '":^ 
^  petition  for  di- 
ifl',  chargin;;h('r 
;vas  brougiit  l^e- 

hJ.l     the.    vovoit 


l)cc;uise  im'omii 


Ive  th'j  <)iie.si'(iii  < 


Butt'iocnu: 


tuf 


roll,;  m  so 
lilwha 


lie    W>1!    " 

trial,  .tua  that  WO 

U'StlOU  <'t 


lip   WIS    I 

,hat  tlio  <!' 
kft  to  tlio  ,|ury 


31-0    llUld 

Lloy 


L  \m  ;in-\v 


Id,   4i)  L.  J- 


lox 


0.  0.  oio. 


fore  tho  court  for  judicial  action,  published  in  its  newr^paper 
thi'  substance  of  tho  petition  without  defamatory  coniiuents. 
////'/,  that  tho  publication  was  not  privileged:  Itorhcr  v.  St. 
Ii'hU  f)iii)ntrh,  3  Mo.  App.  !>77.  A  newspaper  article  contained 
a  sintenicnt,  with  comments,  of  judicial  proceedings  instigated 
by  .1.  to  obtiiiu  a  divorce  from  his  wife,  on  tho  ground  of  her 
adultery  with  plaintiff;  at  the  trial  the  judge  charged  tho  jury 
thai  "  talcing  tho  whole  article  together,  tho  petition  for  divorce, 
and  tho  comments  upon  it,  there  can  bo  no  doubt  that  it  is 
jiiiclous,  and  grossly  so."  IFdd,  correct:  Pltiork  v.  O^Ncill,  G3 
P;i.  St.  253;  3  Am.  Rop.  544.  Defendant  was  cross-oxam- 
iiii'il  concerning  a  certain  newspaper  publication  which  the 
plaintiff's  counsel  afterwards  incorporated  into  his  printed 
brief.  The  publication  on  final  hearing  was  declared  incom- 
petent as  evidence,  and  tho  plaintiff  and  his  counsel  were  sued 
for  libel,  tho  publication  containing  libelous  matter  concerning 
the  defendant.  There  was  nothing  to  show  bad  faith.  Hcldy 
that  tho  publication  was  privileged:  Stewart  v.  Ilillf  83  Ky. 
375. 

§  1299.  Legislative  Proceedings.  —  Every  fair  and 
accurate  report  of  any  proceeding  in  a  legislative  body  of 
any  kind,  or  in  any  committee  thereof,  is  privileged,  even 
thougli  it  contain  matter  defamatory  of  an  individual; 
the  rule  being  the  same  as  in  the  case  of  judicial  pro- 
ceedings.^ Thus  a  newspaper  may  report  the  proceedings 
of  a  public  meeting  of  a  town  council,  and  remarks  made 
by  members  of  the  council  concerning  public  matters, 
and  may  comment  thereupon,  without  being  chargeable 
with  libeling  tlie  mayor,  whose  public  action  is  unfavor- 
ably criticised.'*  But  the  publication  of  proceedings 
beforo  a  joint  committee  appointed  by  the  legislature  to 
sit  after  its  adjournment  to  obtain  evidence,  consisting 
ill  part  of  statements  by  witnesses  under  oath,  to  guide 
the  state's  counsel  in  instituting  criminal  prosecutions 
against  the  perpetrators  of  land  frauds  and  forgeries, 
has  been  held  not  privileged.' 

'Turry  I'.  Fellows,  21  La.  Ann.  375;        *  Wallis   v.    Bazet,    34   La,    Ann. 
Com.  r.  Blaudiug,  3  Tick.  304;  13  Am.     131. 
Dec.  2U.  »  Belo  v,  Wren,  G3  Tex.  686. 


1000 


SLANDER   AND   LIBEL. 


O? 


'J330 


|«  1300.  Other  Reports  —  No  Privilege.  —  "  No  other 
reports  are  piivilcgcd.  It'  any  one  publishes  an  account 
of  tlu)  proc'('e<lin[;s  of  any  meeting  of  a  town  council,' 
board  of  guanlians,  or  vestry,  of  the  share-holders  ol"  any 
coinj)aiiy,  of  the  subscribers  to  any  charity,  or  of  any 
jMiblic  nuH'ling,  political  or  otherwise,  and  such  account 
contains  expressions  defamatory  of  the  plaintitF,  the  fact 
that  it  is  a  fair  and  accurate  report  of  wliat  actually  (oc- 
curred will  not  avail  as  u  defense,  though  it  may  be  urj^cd 
in  mitigation  of  damages.  By  printing  and  publis^hinir 
the  statements  of  the  various  speakers  ho  has  marie  tlicm 
his  own,  and  must  either  justify  and  prove  them  strictly 
true,  or  he  may  rely  upon  their  being  fair  and  bona  fuh 
comments  on  a  matter  of  public  interest."^  The  i)ubli- 
cation  of  the  words  of  a  murderer  on  the  gallows  is  not 
privileged.^ 

§  1301.  Malice  —  Proof  of.  —  As  said  in  a  former  sec- 
tion, malice  is  presumed  from  oral  as  well  as  from  written 
defamation,  and  it  is  not  necessary  to  prove  it^  in  an  or- 
dinary action  tor  defamatory  words  written  or  spoken.^ 
But  whore  the  words  are  shown  to  have  been  uttered  or 


>  But  as  to  til  is,  see  ante,  §  1283. 

'^O  Igcrs  oil  Libel  and  Slander.  See 
ante,  S  \'^'^V). 

^  S.uifonl  r.  Bonnett,  24  N.  Y.  20. 

♦Hviiiii  V.  Culliiu,  111  N.  Y.  143; 
7  Am'.  St.  l{ei>.  7-Jli. 

''The  law  i'lipliti,  if  it  is  libelous, 
and  not  jirivilogud,  tiiat  it  was  mali- 
cious: Liiwriou  /•.  llick.s,  38  AU.  279; 81 
Am.  Dec.  4;>;  Liek  v.  Owen,  47  0;il. 
25l';  Moiislor  /•.  ILirding.  .S3  Ind.  17(5; 
i")  Am.  Ki'ii.  19.");  Jarnii,'au  ('.  Fleming, 
43  Mi.w.  71(t;  5  Am.  Ken.  514;  San- 
denson  v.  C'aldw.ai,  45  N.  Y.  .398;  C 
Am.  Hep.  10.");  Estos  v.  Antrolm.s,  1 
Mo.  197;  13  Am.  Dee.  490;  Gilman  y. 
Lowell,  8  Wend.  ,")73;  24  Am.  Dee.  96; 
Oli.iugli  c.  Kiun,  4  Ark.  110;  37  Am. 
Dec.  773;  liyrket  v.  Monohon,  7 
Blaekf.  83;  41  Am.  Doc.  212;  Hatch?'. 
Potter,  2  Gilm.  725;  43  Am.  Dec.  88; 
Tresca  v.  Maddux,  11  La.  Aun.  200; 


GG  Am.  Dec.  198;  Hoslcy  v.  Brnok.s, 
20111.  115;  71  Am.  Dee.  2.")2;  Smiiit 
V.  Blanchard,  42  N.  H.  137;  Little 
John  V.  Greely,  13  A1>1).  IV.  41; 
Usher  V.  Soveraneo,  20  Mc  '.I;  Ii7 
Am.  Dec.  33;  Hudson  v.  (liriar, 
22  Mo.  423;  Fry  r.  Bennett.  5 
Sand.  54;  Gaul  v.  Fleminj,',  ID  Iml. 
253;  Johnson  ?'.  Rohert.son,  8  I'oit. 
48G;  Pennington  r.  Meeks,  4(J  .Mn. 
217;  Zuckerman  *•.  Snrnie.seluMii,  (i'J 
111.  115;  Humphries  /•.  rarker,  Wl  Me. 
502;  True  v.  Plundev,  3(5  Mf.  4(m; 
Nott  V.  Stoddar.l,  38 'Vt.  2.');  SS  Am. 
Dec.  633.  Where  a  libel  i.;  pulili-ila'il 
in  a  newspaper  conducted  by  a  ]i;irt- 
nership,  the  malice  of  one  jiartmr  is 
imputable  to  his  copartners,  althdiiu'li 
a  statute  exacts  proof  of  actual  malice; 
Lothrop  V.  Adams,  133  Mass.  471;  43 
Am.  liep.  528. 


2350 

-"No  other 
till  account 
ivu  council/ 
tl'.lcra  of  liny 
{,  or  of  any 
!ucli  iiccount 
ititr,  the  fact 
actually  oc- 
luiy  ho  urr;o(l 
l1  puhlishiiis^ 
,8  mtvlc  ilifiu 
thoni  strictly 
unci  bona  fule 
■     The  publi- 
•uUows  id  not 


a  former  scc- 

s  from  wvilteu 

e  it^  in  an  or- 

n  or  spoken.'' 

en  uttered  ur 

onlcy  r.  Brfioks, 
Doo.  '2.')'J;  Smait 
11.  1:57;  LittK- 
^^  AhU.  Vr.  41; 
i'ii,  '20  Mf.  '••;  ;*T 
ikoii  )".  Ciirmr, 
r.  Ik'iiiu'tt,  5 
FUnniny,  10  Iml. 
LdhiTt-icsi,  8  Tort. 
r.   Meuks,  4(>    Mo. 

SlIllllOSulR'ill,     'i- 

s  i:  I'iifkur,  .VJ  NK'. 
iiluv,  oil  M''-  •*'"'•. 
:iS'Vt.  '_'.';  >iS  Am. 
a  liliel  i:'-  i)iilili-lii-''l 
iilucteil  l>y  a  i^irt- 

of  <iiio  iiiiitiifr  \i 
ipiirtiior.-i,  iiUli(iii'4h 
xif  of  iictual  m;iliLi': 

133  Masd.  471;  43 


23:.i 


DEFENSES. 


1300 


puMii-jlied  on  an  occasion  or  under  circumstances  of  a 
(lUalilied  privilege,  the  (lucstion  of  malice  l>eeomeH  rele- 
vant, and  if  i>roved  to  exist,  takes  away  the  privilege.'  And 
nuilice  in  this  connection  means  any  \vri»ngful  motive 
which    induces    the   defendant    to  defame  the  plaintill'.* 


'  i;\i./oii  /•.  Crainer,  47   Wis.  059; 
Cluk  r.  Molyiieux,  L.  R.  .T  Q.  ».  iJiv. 
i!4(i,  Hrftt,  L.  J.,  Hayiiii,':  "Wliuiitlicro 
111  i  Ih'cii  a  writing  oi-  a  M[K;akiiiK  of  ilo- 
fiuiiatory   matter,    and  tliu  juili>o  Ima 
lii'lil    -  iiiiil  it  id  tor  liiiii  to  (lucij.)  tlio 
(jiustiori    -that  although  tlio   iiiattiir 
is  (lulaiiiatory  tiiu  (iccasioii  on  which 
it  IS  either  written  or  apoken  is  privi- 
li  l;  cl,  it  is  nece.i.sary  to  conaiilcr  how, 
ahiiiiiij^h   the  oucauion   ia  privileged, 
yd  Iho  di.ftndant  is  not  pcrniittod  to 
tiiko  advantage   of  tlio   i)rivii<)go.     If 
tlio  oiua.sion  in  privileged,  it  in  so  for 
gome  rca.son,  and  thudefcnd mt  is  only 
entitled  to  tho  protucti.-i  »  :'  the  privi- 
lege if  ho  usej  tho  occaHion  for  that 
reisoii.    Ilo  is  111  f  entitled  to  tho  pro- 
tLftioii   if    ho   u.ses   tho   occasion   for 
s<i!iit'  indirect  and  wrong  motive.     If 
he  u  ie.s  tho  occa.-tion  to  gratify  his  au- 
g'l'  111'  his  malice,  ho  u.se.s  tho  occasion, 
nui  lor  tho   reason  which   makes  the 
oiL.uion  privileged,  hut  for  au  indirect 
and  wrong  motive.  If  the  indirect  and 
wi'Dni;  motive  suggested  to  take  the 
dti.un  itory  matter  out  of  the  privilege 
is  niiilii^e,  tiien  there  are  certain  tests 
(if  niiilii^!.    Malieo  does  not  mean  mal- 
ici'  in  law,  a  term  in  pleading,  but  ac- 
tud   niuliee,  that  which  is  popularly 
callid  malice.     If  a  man  is  jiroved  to 
have  .stated  that  which  he  knew  to  bo 
fal-ii',   no  one    need   in(iuire   further. 
Everyliody  assumes    thenceforth  that 
lie  was   malicious;   that  he  did  do  a 
wronL!  thing  for  some  wrong   motive. 
So  if  it  he  proved  that  out  of  anger,  or 
for  some  otlior  wrong  motive,   the  de- 
fendant has  stated  us  true  that  which 
he  dues  not  know  to  bo  true,  aud  ho 
lia.s  .stated  it  whether  it  is  true  or  not, 
recklessly,  by  reason  of  his  anger  or 
other  motive,  tho  jury  may  infer  that 
he  nacd  tho  occasion,  not  for  tho  reason 
wliieli  justilies  it,  but  for  the  gratifi- 
cation of  his  anger  or  other  indirect 

iiiutive Ihe  judgmeut  of  Bay- 

l^^i'i  d.,  in  Bromago  v.  Prosaer,  4  Barn. 
&  C  "jj,"),  treats  of  malice  in  law,  and 
no  doubt  where  the  word  '  malicioualy ' 


is  uaod  in  a  iileading,  it  meiins  inten- 
tionally, willluUy.  it  hat  bei  n  decided 
that  if  the  woid  'maliciously  '  ia 
omitted  in  a  dicl.iralion  for  lilid,  and 
the  words  ' wrongfully'  or  'filsely' 
substituted,  it  is  siiliieient,  tin;  rca.son 
being  that  the  word  '  malic'ously,' 
as  used  in  ;i  pleadinj;,  has  only  a  (>>  h- 
nieal  meaning;  but  lure  we  are  tleal 
ing  with  inuUee  in  fact,  and  malice 
then  means  a  wrong  ieeling  in  a  man's 
mind." 

*  Treaca?'.  Maddox,  1 1  La.  Am.  200; 
00  Am.  Dec.  i'.KS.   In  Jellison  r.  (lood- 
win,  43  Me.  281,  01)  Am.  l>ec.  C.J.  the 
court  say:   "The  distinction  betw.eii 
malice  in  law  and  malice  in  f  let  has 
not  always  been  reg;irdrd  .sutraiently 
in  judicial  opiidons,   and  some  appar- 
ent contlict  has  rc-nlted.     N.t   does 
the    term   'malice'  always   h.tvo  the 
same  siguilication  in  Inw.     Jn  ueiions 
for  malicious  prosecution,  the  word  has 
a  meaning   and   force   dillerent   from 
what  it  has  in  action.)  on  tho  ease  for 
slander:  Mitchell  v.  Jonkin.s,  i)  ISaru. 
&  Adol.  588.     As  understood   in  this 
latter  class  of  actions,  malice  in  fact 
implies  a  desire  and  an  intention  to  in- 
jure.    But  malice  in  law  is  not  neces- 
sarily inconsistent  with  an   honest  or 
even  a  laudable  purpose.   If  one  makes 
a  false  accusation  against  another  with- 
out knowing  it  to  be  false,  but  with  no 
sufficient  cau.sc  or  exeus<!,  it  is  legally 
malicious:  Bromage  r.  I'rosser,  4  Barn. 
&  0.  247.     If  he   makes  such  an  ac- 
cusation, knowing  it  to  bo  false,  it  ia 
actually  malicious.     The  former  is  a 
presumption  of  law  from  certain  facts 
proved.     Whether  tho  latter  existed 
in  any  given  case  is  a  (picstiou  of  fact 
tor  the  jury.     Legal  malice  alone  is 
sufficient    to    support  an  action   for 
slanderous  words.     And  if  the  words 
are  actionable  in  themsclve.j,  and  aro 
not  privileged,  the  speaking  of  them 
is  sufficient  evidence  of  this  kind  of 
malice.     The  law  implies  such  malice 
from  the  uttering  of  such  words,  and 
no  other  evideuce  of  malice  is  uecea- 


1301 


BLiM>SB  AND  LIBEL. 


2352 


The  onus  of  proving  malice  is  then  on  the  plaintifi",'  and 
that  the  cliarge  is  false  is  not  sufficient  eviJence  of  it.' 
But  malice  may  be  inferred  from  false  statements  exceed- 
ing the  limits  of  fair  and  reasonable  criticism,  and  reck- 
lessly uttered  in  disregard  cf  the  rights  of  those  who 
might  bo  afi'octed  by  them.* 

To  prove  malice  the  plaintiff  may  show,  — ill  feeling  and 
hostility  existing  between  the  parties;*  former  or  subse- 
quent slanders  or  libels  on  him  by  the  defendant;'  that 
the  defendant  has  subsequently  reiterated  the  same  or 
similar  defamatory  words,  even  since  the  action  was 
brought;^  that  the  defendant  has  attempted  to  justify  it, 
but  has  failed;'  that  defendant  took  depositions  with  the 
view  to  prove  the  truth  of  the  libel,  and  then  abandoned 
this  defense  at  the  trial;®  that  plaintiff  and  defendant  are 
rivals  in  trade,  or  that  they  competed  together  for  some 
post,  and  plaintiflF  succeeded,  and  that  then  the  defendant, 


sary.  But  tho  plaintiff  may,  if  he 
chooses,  provo  actual  malice  also  to 
eahaiK'o  tho  ilaiiiages:  True  v.  Plum- 
ley,  8(5  Me.  4(i0.  If  the  defendant 
shows  that  the  words  were  spoken  as 
privileged  cormnuuications,  so  that 
there  was  no  legal  malice,  it  is  a  full 
justiiicatiou  upon  which  he  is  entitled 
to  a  veriliob  in  hia  favor.  But  proof 
that  there  Vv'as  no  actual  malice  goes 
only  in  mitigation  of  damages." 

'  Taj  lor  i:  Hawkins,  IG  Q.  B.  132; 
Cooke  r.  Wihlse,  ")  El.  &  B.  340;  Clark 
V.  Molyneux.  L.  R.  3  Q.  B.  Div.  237; 
Byam  r.  Collins,  111  N.  Y.  143;  7  Am. 
St.  Reii.  TUG. 

"■  LowU  V.  Chapman,  16  N.  Y.  369; 
Fowlei  I'.  Boweii,  30  N.  Y.  20;  Caul- 
field  V.  Whitworth,  16  Week.  Rep. 
930. 

•Miott  V.  riilsifer,  122  Mass.  235; 
23  Am.  Rep.  T.-J-J. 

*  Blagg  V.  Hturt,  10  Q.  B.  904. 

*  Larraboe  r.  Minn.  Tribune  Co.,  36 
Minn.  Ml;  Barrett  v.  Long,  3  H.  L. 
Cas.  30.");  Prune  r.  Eastwood,  45  Iowa, 
640;  Ward  v.  Dick,  47  Conn.  300;  36 
Am.  Rep.  75;  Letton  v.  Young,  2  Met. 
(Ky.)  558;  Behee  v.  R.  R.  Co.,  7)  Tex. 
424;  iStearas  v.  Cox,  17  Ohio,  590;  Bar- 


tow V.  Brands,  15  N.  J.  L.  248;  Brittain 
V.  Allen,  2  Dev.  120;  Carter  v.  MeDow- 
ell,  Wright,  100;  Elliott  v.  Boyles,  31 
Pa.  St.  05;  Miller  v.  Kerr,  2  MuCord, 
2S5;  13  Am.  Dec.  722;  Halley  c  Oregg, 
74  Iowa,  503.  Though  sueh  previous 
libels  may  be  barred  by  tlie  stat- 
ut'>  of  limitations:  Evening  .lournal 
Association  i'.  McDermott,  44  N.  J.  L. 
430;  43  Am.  Rep.  392. 

« Chuljb  V.  Westley,  6  Car.  &  P. 
436;  Pearson  v.  Lemaitre,  5  Mees.  & 
VV.  700;  Delegall  v.  Highley.  8  Car.  & 
P.  444;  Macleod  v.  Wakley,  :5  Car.  & 
P.  311;  Ward  v.  Dick,  47  Con;i.  .'lOO; 
36  Am.  Rep.  75;  Miller  u.  Kerr,  2  Mo- 
Cord,  285;  13  Am.  Dec.  722;  Mtlntyre 
V.  Young,  6  Blackf.  490;  'VJ  Am.  Die. 
443;  Ware  v.  Cartledgc,  24  Ala.  ti'22; 
60  Am.  Dec.  480;  Parmer  r.  Amlerson, 
33  Ala.  78;  Williams  v.  Miner,  13 
Conn.  404;  Smith  v.  Wyinan,  10  Me. 
13;  Duvall  V.  Griffith,  2  IJar.  &  H.  :50; 
Bodwell  V.  Swan,  3  Pick.  3To;  Baldwin 
V.  Soule,  6  Gray,  321;  Thonipjou  v. 
Bowers,  1  Doug  (Mich.)  321. 

'  Ward  V.  Dick,  47  Conn.  300;  3G 
Am.  Rep.  75.     See  ante,  Justilication. 

«  Bodwell  V.  Osgood,  3  Pick.  379; 
15  Am.  Dec.  228. 


2352 

tiff,'  and 
ce  of  it.' 
,s  cxceed- 
aiul  reek- 
hose  who 

seling  and 
•  or  subse- 
ant;'  tbat 
e  same  or 
iction   was 
f  justify  it, 
IS  with  the 
abandoned 
fend  ant  are 
jr  for  some 
3  defendant, 


2353 


DEFENSES. 


§1301 


being  disappointed,  wrote  the  libel;*  that  the  words  used 
arc  grossly  exaggerated  in  describing  the  plaintiff's  con- 
duct;^  that  the  communication  was  made  unnecessarily 
public,  as  in  the  hearing  of  third  persons,  etc.,  or  to  per- 
sons who  had  no  interest  in  it;'  that  the  defendant  knew 
the  charge  was  false;*  that  it  was  made  wantonly,  without 
the  defendant's  knowing  or  caring  whether  it  was  true  or 
false ;'^  that  defendant  caused  the  libel  to  be  industriously 
circulated;"  that  defendant  subsequently  refused  to  retract 
the  slanderous  words;'  that  he  refused  to  publish  a  card 
expressing  a  belief  in  plaintiff's  innocence,  save  as  an  ad- 
vertisement.*    Where  a  master  has  given  a  servant  a  bad 
character,  the  circumstances  under  which  they  parted,  any 
expressions  of  ill-will  uttered  by  the  master  then  or  sub- 
sequently, the  fact  that  the  master  never  complained  of 
the  plaintiffs  misconduct  whilst  she  was  in  his  service,  or 
when  dismissing  her  would  not  specify  the  reason  for  her 
dismissal,  and  give  her  no  opportunity  of  defending  herself, 
together  with  the  circumstances  under  which  the  charac- 
ter was  given,  and  its  exaggerated  language,  are  each  and 
all  evidence  of  malice." 

But  on  the  question  of  malice,  evidence  is  not  admis- 
sible that  the  defendant  has  libeled  or  threatened  to  libel 
other  persons.*"  And  two  articles  cannot  be  coupled  to 
ascertain  if  one  of  them  is  libelous  or  not,  the  articles 
not  being  published  in  the  same  paper."  In  an  action  of 
slander  for  charging  plaintiff  with  the  commission  of  a 

Warman    v.    Hine,    1    Jur.    820;    is  not  evidence  of  actual  malice  in  the 


Smith  V.    Mathews,    1    Moody  &  K. 
151. 

*  Odgers  on  Libel  and  Slander,  277. 

'  Oilgers  on  Libel  and  Slander,  277. 

'  Odgers  on  Libel  and  Slandfr,  27^. 

"  Clark  V.  Molyneux,  L.  R.  3  Q.  B. 
Div,  '247. 

"Gatbercole  v,  Miall,  15   Mees.  & 
W.  31i). 

'  Klowin  V.  Bauman,  53  Wis.  244. 
Mere  hesitancy  or  a  refusal   on  the 
part  of  the  publisher  of  a  libel  to  re- 
tract after  being  advised  of  the  error    Am.  Dec.  33. 
148 


original  publication:  Bradley  v.  Cra- 
mer, 6G  Wis.  297. 

*  Barnes  v.  Campbell,  60  N.  H. 
27. 

'  Kelly  V.  Partington,  4  Barn.  & 
Adol.  700;  2  Nev.  "fe  M.  460;  Jacksoa 
V.  Hopperton,  16  Coin.  B.,  N.  S.,829; 
Rogers  v.  Sir  Gervas  Clifton,  3  Bos.  & 
P.  587. 

"■  Cochran  v.  Buttertield,  18  N.  H. 
115;  45  Am.  Dec.  363. 

"  Usher  v.  Severaacc,  20  Me.  9;  37 


§1301 


SLANDER  AND   LIBEL. 


2354 


crime,  the  record  of  acquittal  in  a  criminal  prosecution 
for  the  same  crime  is  not  admissible  to  show  malice.' 

Illustrations. — The  rector  dismissed  the  parish    school- 
master for  refusing  to  teach  in  the  Sunday-school.     The  school- 
master opened  another  school,  on  his  own  account,  in  the  parish. 
The  rector  published  a  pastoral  letter  warning  all  parishioners 
not  to  support  "a  schismatical  school,"  and  not  to  be  partakers 
with  the  pkintiflF  "in  his  evil  deeds,"  which  tended  "to  pro- 
duce disunion  and   schism,"    and    "a  spirit  of  opposition  to 
authority."     Held,  evidence  to  go  to  the  jury  that  the  rector 
cherished  anger  and  malice  against  the  school-master:  Gilpin 
V.  Folder,  9  Ex.  G15.     The  defendant  wrote  a  letter  to  be  pub- 
lished in  the  newspaper.     The  editor  struck  out  all  the  more 
outrageous  passages,  and  published  the  remainder.     Held,  that 
the  defendant's  manuscript  was  admissible  in  evidence,  and 
the  obliterated  passages  to  show  the  animus  of  the  defendant; 
Tarpley  v.  Blahy,  2  Scott,  642.     Defendant,  subsequently  to  the 
slander,  admitted  that  there  had  been  a  dispute  between  him- 
self and  the  plaintiff  prior  to  the  slander  about  a  sum  of  money 
which  the  plaintiff  claimed  from  the  defendant.     At  the  trial, 
also,  the  plaintiff  offered  to  accept  an  apology  and  a  verdict 
for  nominal  damages,  if  defendant  would  withdraw  his  plea  of 
justification.     The  defendant  refused  to  withdraw  the  plea,  yet 
did  not  attempt  to  prove  it.     Held,  evidence  of  malice:  Simp- 
son V.  Robinson,  12  Q.  B.  511.     The  defendant  verbally  accused 
the  plaintiff  of  perjury.   "Subsequently  to  the  slander,  defendant 
preferred  an  indictment  against  the  plaintiff  for  perjury,  which 
was  ignored  by  the  grand  jury.     Held,  admissible  as  evidence 
that  the  slander  was  deliberate  and  malicious,  although  it  was 
a  fit  subject  for  an  action  for  malicious  prosecution:  Tate  v. 
Humphrey,  2  Camp.  73,  note.     The  defendant  tendered  to  B. 
two  one-pound  notes  on  the  plaintiffs'  bank,  which  B.  returned 
to  him,  saying  there  was  a  run  upon  that  bank,  and  he  would 
rather  have  gold.     The  defendant,  the  very  next  day,  told  two 
or  three  people  confidentially  that  the  plaintiff's'   bank  had 
stopped,  and  that  nobody  would  take  their  bills.     Held,  that 
this  exaggeration  of  the  report  was  some  evidence  of  malice  to 
go  to  the  jury:  Bromage  v.  Prosser,  4  Barn.  &  C.  247;  G  Dowl. 
&  R.  296;  1  Car.  &  P.  475.    A  told  the  second-master  of  a  school 
that  he  had  seen  one  of  the  under-masters  of  the  school  on  one 
occasion  coming  home  at  night  "under  the  influence  of  drink," 
and  desired  him  to  acquaint  the  authorities  with  the  fact.  The 
second-master  subsequently  stated  to  the  governors  that  it  was 
notorious  that  the  under-master  came  home  "  almost  habitually 

1  Corbley  v.  Wilson,  71  111.  209;  22  Am.  Rep.  98. 


2355 


DEFENSES. 


§1301 


m  a  state  of  intoxication."  There  was  no  other  evidence  of 
'^rTii  f3  ^v^^ence  of  malice  to  go  to  the  jury:  Hume  v 
Marshall,  Odgers  on  Libel  and  Slander,  282.  Defendant 
was  a  customer  at  plaintiff's  shop,  and  had  occasion  to  com- 
plain of  what  he  considered  fraud  and  dishonesty  in  the  i)lain- 
tiff  s  conduct  of  his  business,  but  instead  of  remonstrating 
quietly  with  him,  defendant  stood  outside  the  shop-door  and 
Bpoke  so  oud  as  to  be  heard  by  every  one  passing  down  the 
street.  The  language  he  employed,  also,  was  stronger  than 
the  occasion  warranted.  Held,  evidence  of  malice  to  io  to  the 
jury:  Oddy  v.  Lord  George  Paulet,  4  Fost.  &  P.  1009  Action 
against  the  proprietors  of  a  newspaper  for  publishing  a  libel- 
the  report  was  received  from  an  established  news  agency,  pub- 
hshed  in  but  one  edition  of  the  paper,  suppressed  in  subsequent 
ones;  some  of  the  copies  of  the  paper,  unsold  when  it  was  dis- 
covered, were  not  destroyed,  and  one  copy  was  sold,  and  on  the 
following  day  a  retraction  was  published.  Actual  malice  on 
the  part  of  the  corporation  or  any  of  its  officers  was  not  proved, 
i/efr^  that  the  evidence  would  not  authorize  the  jury  to  find 


§  1302 


SLANDER  AND   LIBEL. 


2350 


CHAPTER  LXVIII. 


DAMAGES — EVIDENCE — PLEADINa 

§  1302.  Greneral  damages. 

§1303.  Evidence  —  In  aggravation. 

§  l.S(M.  Evidence  —  In  mitigation. 

§  1305.  Special  damage  —  What  is  and  what  is  not. 

§  1306.  Pleading. 

§  1307.  Who  may  sue. 

§  130S.  Law  and  fact. 

§  1302.  General  Damages — Measure  of. —General  dam- 
ages  are  sucli  as  the  law  presumes  to  be  the  natural  or 
probable  consequence  of  the  defamatory  words.  Such 
damages  are  presumed  only  where  the  words  are  action- 
able per  se,^  and  they  need  not,  in  such  cases,  be  proved.^ 
But  if  the  words  are  not  actionable  per  se,  some  damage, 
however  slight,  must  be  proved.'' 

The  amount  at  which  the  plaintiff's  general  damages 
are  to  be  assessed  lies  with  the  jury,  who  may,  if  they 
jilease,  give  vindictive  damages  to  punish  the  defendant 
for  his  misconduct.*     Damages  for  wounded  feelings  are 


^  I.e.,  wilt-re  the  words  are  printed 
or  written,  -.v.ul  in  three  cases  where 
they  are  oral  (as  to  these,  see  ante,  §§ 
124-5).  Evidoiice  of  pecuniary  loss  is 
unnecessary  to  a  right  of  action  for  a 
lihelou-t  cliar^oof  au  attemptto  commit 
murder:  Ri'iuililican  Puh.  (Jo.  v.  Mii>er, 
Col.  ISS'J.  So  from  the  fact  that 
one  is  charged  with  hoing  a  thief,  it 
may  he  presumed  that  he  suflFered 
mental  aiiguish:  Peters  v.  Bourneau, 
22  111.  Api).  177. 

^  SandtT.-ou  ,\  Caldwell,  45  N.  Y. 
3<)S;  ()  Am.  lUp.  105;  Yeates  v.  Reed, 
4  Blaekf.  40:!;  32  Am.  Dec.  43;  New- 
bit  r.  Staiuck,  35  Me.  315;  58  Am. 
Dee.  70(5. 

^  Linney  ?•.  Maton,  13Tex.454;  Mc- 
Queen ('.  Fulyham,  27  Tex.  403;  Brandt 
V.  Townley,  hS  Wend.  253. 

♦  Hayner  v.  Cowden,  27  Ohio  St.  292; 
22  Am.  Rep.  .'503;  Snyder  r.  Fulton,  34 
Md.  128;  U  Am.  Hep.  314;  Hoaley  v. 


Brooks,  20  111.  115;  71  Am.  Dec.  232; 
Lick  V.  Owen,  47  Cal.  252;  Nulaii  c. 
Traber,  49  Md.  4C0;  33  Am.  lUp.  L'77; 
Bowe  V.  Rogers,  50  Wis.  598;  Klowiu 
r.   Bauman,  53  W^is.  244;    Sowors   r. 
Sowers.  87  N.  C.  303;  BurcklialtLT  r. 
Coward,  10  S.  C.  435;  Meyer  -•.  B.ilil- 
frig,  44  lud.  238;  Wilms  r.  Wl.ite,  L'lj 
Md.  380;  90  Am.  Dec.  11.3.    Jii(;ilisnn 
V.  Cincinnati  Enquirer,  2  Flipp.  1"21, 
in  refusing  to  set  aside  a  venlict  of 
$3,875  against  a  newspaper  for  cJiar- 
ging  theplaintiflF  with  adultery,  ]!t(iwii, 
J.,  reviewed  the  cases  on  tin-  incasure 
of  damages,  saying:  "A  few  lustaiioes 
whore  applications  have  been  refused 
will  show  the  general  reluetaiice  oi 
courts  to  set  aside  verdicts  in  actions 
of  this  kind  upon  the  ground <ii  ixces- 
sive  damages.   In  McDougall  r.  Sharp, 
1  City  H.  Rec,  the  charge  was  {tor- 
jury,  and  the  verdict  $3,500,  which 
the  court  refused  to  disturb;  in  Tillot- 


2356 


2357 


DAMAGES  —  EVIDENCE — PLEADING. 


§  1302 


lat  is  not. 


reneraldam- 
e  natural  or 
ords.  Such 
,  are  action- 
,  be  proved.^ 
me  damage, 

ral  damages 

may,  if  they 

le  defendant 

feelings  are 

71  Am.  Dec.  2a2; 
il.  2o'i;  Nulan  v. 
33Aiu.  ra|).  '277; 
Vis.  598:  Klcwiii 
244;    SiAvors   c. 
Burckiiiilter  v. 
•  Meyer  -'.  Holil- 
ilnis  V.  White,  I'lJ 
;.  113.    Itidilisoii 
er,  2  Flipp.  I'^l, 
jide  a  vcidict  of 
ifspaper  foi'  eluir- 
adultery,  I'.rown, 
s  on  tin-  incasiire 
•'A  few  lusfcinces 
ave  been  lefuseil 
•al  reluetanee  of 
relicts  ill  actions 
ground oi  ixcus- 
Dougall  r.  Sharp, 
charge  was  per- 
•t  l$a,r>()0,  which 
.sturb;  iuTillot- 


allowable,  if  the  plaintiff's  character,  public  or  private, 
id  proved  to  have  been  injured  by  the  libel. ^  But  dam- 
ages for  prospective  suffering  are  not  recoverable.^ 

The  fact  that  the  Mbel  renders  the  defendant  liable  to  an 
indictment  does  not  prevent  the  jury  from  giving  vindic- 
tive damages."  If  the  jury  decide  that  all  the  actual  dam- 
ages sustained  are  merely  nominal,  punitive  damages  are 


son  ?•.  Chectham,  2  Johns.  C3,  the  court 
rulused   to   set   aside   a  verdict    for 
Jl,4(t()   for  accusing   the  plaintifiF   of 
political  corruption.     'A  case  nnistbe 
very  gross  and  the  recovery  enormous 
to  justify  o\ir  interposition  on  a  mere 
question  of  damages  in  an  action  for 
Blinder.'    In  Ryeknian  ?>.  Parkins,  9 
Wind.   470,    a  verdict   in  slander  of 
§7,000  was  sustained;  in  Trumbull  v. 
Gibbons,  N.  Y.  Jud.  Rep.  1,  a  verdict 
of  §15,000,  and  in  Fry  v.  Bennett,  4 
Duer,  247,  one  of  $10,000  for  puldish- 
iii{4  charges  against  the  plaintiff  as 
manager  of  an  opera  company,  were 
also  held  insufficient  to  justify  the 
interference  of  the  court.     In  Duliery 
!'.  (iuiuiing,  G  Term  Rep.  C51,  the  court 
refused  to  disturb  a  verdict  of  £5,000 
in  an  action  for  criminal  conversation; 
anil  in  Coffin  v.  Coffin,  4  Mass.  1,  the 
court  sustained  a  verdict  of  §2,500  for 
slander  spoken  in  the  house  of  I'opre- 
sentatives.  The  case  was  tried  in  1808, 
wlien  the  purchasing  value  of  $2,500 
was  at  least  twice  what  it  is  to-day.  In 
Lettou  r. Young,  2  Met.  (Ky.)558,  the 
supreme  court  of  Kentucky  refused  to 
set  aside  a  verdict  of  $4,000  in  an  ac- 
tion of  slander.     The   cases  of   this 
character  in  which  the  courts  have 
granted  new  trials  upon  this  ground 
are  not  oidy  very  rare,  but  will  always 
be  found  to  be  accompanied  by  strong- 
ly mitigating  circumstances.     In  Net- 
tles r.  Harrison,  2  McCord,  230,  the 
defuuilant  said  of  the  plaintiff  that  he 
kept  a  house  of  prostitution;  verdict 
85,000.     A  new  trial  was  granted,  as 
tiie  words  were  uttered  but  once,  and 
were  induced  by  plaintiff  encouraging 
defendant'.^  son  to  visit  his  house,  hav- 
ing daughters  of  none  the  best  charac- 
ters, with  whom  his  son  ha<l  been  too 
intimate.     In  Freeman  i*.  Tinsley,  50 
111.  4D7,  a  verdict  of  $2,500  was  set 


aside  in  an  action  for  slander,  where 
the  words  were  spoken  in  high  excite- 
ment, provoked  by  the  plaintiff;  and 
under  a  plea  of  justitication  it  was 
shown  the  iilaintiti'  had  been  indicted 
for  the  crime  with  wliich  he  was 
charged,  and  in  connection  with  proof 
of  doubtful  associations  and  suspicious 
character.  In  the  case  of  Seripps  v. 
Reilly,4  Cent.  L.  J.  128,  a  liljel  was 
published  in  a  newspaper  having  about 
the  circulation  of  the  Enquirer,  im- 
puting a  charge  of  adultery  to  a  promi- 
nent citizen  of  Detroit,  the  jury- 
returned  a  verdict  for  .^4,0(X),  and  al- 
though a  new  trial  was  li  nally  obtained, 
the  fact  that  the  daniagus  were  exces- 
sive was  not  suggested  by  tho  astute 
counsel  who  defended  the  case.  Upon 
the  retrial  the  verdict  Mas  increased  to 
$5,000.  In  Neal  v.  Lewis,  2  Bay,  204, 
the  supreme  court  of  South  Carolina 
refused  to  set  aside  a  verdict  for  §3,000 
for  calling  tho  plaintifi"a  rascal,  villain, 
swindler,  and  thief."  In  Beggarly  v. 
Craft,  31  Ga.  309,  70  Am.  Dec.  087,  a 
verdict  of  $4,250  was  set  aside  when 
the  charge  was  that  tlio  plaintiff  was 
unchaste.  In  A's  action  against  B 
for  slander  in  saying  that  A  burned 
B's  barns,  a  verdict  for  A  for  §4,000 
was  held  excessive,  it  appearing  that 
the  fire  was  incemliary;  that  A  had 
expressed  malice  against  B,  intimating 
that  his  barns  might  be  burned;  that 
B  honestly  believed  the  declarations 
true;  that  no  one  else  was,  on  full  in- 
vestigation, suspected;  and  that  A  had 
sustained  little  injury:  Haight  v. 
Hoyt,  50  Conn.  583. 

1  Hamilton  v.  Eno,  10  Hun,  590. 

^  Bradley  v.    Cramer,  00  Wis.  297. 

»  Barr  v.  Moore,  87  Pa.  St.  385;  30 
Am.  Rep.  307.  Contra,  Meyer  v.  Bohl- 
frigy,  44  lud.  238. 


1303 


SLANDER  AND  LIBEL 


2358 


not  recoverable;'  and  punitory  damages  should  be  awarded 
in  an  action  of  slander  only  when  in  speaising  the  slandc  r- 
ous  words  the  defendant  was  actuated  by  special  ill-will, 
bad  intent,  or  malevolence  towards  the  plaintifif.^  Thoy 
may  consider  tho  degree  of  malice  with  which  the  alleged 
slanderous  words  were  spoken,  as  shown  by  the  subse- 
quent acts  and  declarations  of  the  defendant;  but  tliey 
cannot  give  damages  for  such  acts  and  declarations,  how- 
ever infamous  or  criminal  they  may  be.^  If  it  appears 
that  the  libel  was  published  with  no  intent  to  injure,  and 
that  all  proper  precautions  were  observed  in  publishing 
it,  actual  damages  only  are  recoverable,'*  and  as  tho 
amount  of  damages  in  an  action  for  slander  or  libel  is 
always  a  subject  for  the  exercise  of  the  sound  discretion 
of  the  jury,  who  may  give  more  or  less,  according  toil)  '.v 
conclusions  from  the  whole  case,  respecting  the  motives  of 
the  publisher,  a  verdict  in  such  an  action  will  not  bo  set 
aside  for  excessive  damages,  unless  there  is  some  sus- 
picion of  unfair  dealing,  or  unless  the  case  be  such  as  to 
furnish  evidence  of  prejudice,  partiality,  or  corruption  on 
the  part  of  the  jury.  The  case  must  be  very  gross  and 
the  damages  very  erroneous  to  justify  a  new  trial  on  the 
question  of  damages.'  The  jury  may,  in  estimating  com- 
pensatory damages,  allow  to  the  plaintiflf  reasonable 
counsel  fees  in  the  prosecution  of  his  action,  although 
there  may  be  circumstances  of  mitigation.®  The  mcasuio 
of  damages  against  husband  and  wife  for  the  wife's  li'jol 


^  Stacy  w.  Portland  Publishing  Co., 
68  Me.  279. 

*  Templeton  v.  Graves,  59  Wis.  95. 

»  Stitzell  V.  Reynolds,  67  Pa.  St.  54; 
6  Am.  Rep.  396. 

♦  Evening  News  Ass'n  v.  Tryon,  42 
Mich.  549;  36  Am.  Rep.  450. 

^  Nea!  v.  Lewis,  2  Bay,  204;  1  Am. 
Dec.  640;  Coleman  v.  Southwick,  9 
Johns.  45;  6  Am.  Dec.  253;  Bod  well 
V.  Osgood,  3  Pick.  379;  15  Am.  Dec. 
228;  Davis  v.  Ruff,  Cheves,  17;  34 
Am.  Dec.  584;  Sanders  v.  Johnson,  6 
Blackf.  50;  36  Am.  Dec.  564;  Shute  v. 


Barrack,  7  Pick.  84;  Trabue  v.  Ihys. 
3  Dana,  138;  28  Am.  Dec.  61;  Huaip»i. 
ries  V.  Parker,  52  Me.  808;  Bcehkr  r. 
Steever,  2  Whart.  326;  Buit  r.  Mc- 
Bain,  29  Mich.  260;  Miles  v.  llariiug- 
ton,  8  Kan.  425;  Snyder  v.  FiiUuii,  'H 
Md.  128;  6  Am.  Rep.  314;  Marks  v. 
Jacobs,  76  Ind.  216;  MoUoy  r.  Ben- 
nett, 15  Fed.  Rep.  371;  Baker  i: 
Young,  44  111.  42;  92  Am.  Dec.  149; 
and  see  note  to  Teruilliger  v.  WauJs, 
72  Am.  Dec.  426-436. 

«  Finney  v.  Smith,  31  Ohio  St.  529; 
27  Am.  Rep.  524. 


2359 


DAMAGES — EVIDENCE  —  PLEADING. 


1303 


i  be  awarded 
the  slandor- 
cial  ill-will, 
itiff.''    They 
1  the  alleged 
y  the  subse- 
it;  but  they 
•ations,  how- 
If  it  appears 
)  injure,  and 
1  publishing 

and  as  tho 
ler  or  libel  is 
id  discrcti'^n 
rding  to  th  [v 
he  motives  of 
nil  not  be  set 
is  some  siis- 
be  such  as  to 
corruption  on 
'ery  gross  and 
\v  trial  on  the 
i mating  com- 

f    reasonable 
ion,  although 

The  measuie 

le  wife's  libel 

i;  Trabue  v.  M:i;.''. 
I.Dec.  CI;  ilumpH' 
le.  808;  Bcchkr  •'. 
326;  Burt  r.  Mc- 
_,  Miles  V.  Harriug- 
nyiler  v.  FuUnii,  34 
lep.  314;  Marks  v. 
IG;  Molloy  r.  Bon- 
ep.  371;  BaktT  r. 
92  Am.  Deo.  149; 
ruilliger  v.  Wamls, 

36 

1, 31  Ohio  St.  529; 


1 


is  the  same  as  it  would  be  against  her  alone  if  she  were 
sole.' 

§1303.  Evidence — In  Aggfravation.  —  Evidence  of 
malice  is  relevant  in  aggravation  of  damages.^  So  is 
defendant's  conduct  of  his  own  case,  and  even  the  lan- 
guage used  by  his  counsel  at  the  trial;'  so  is  the  repetition 
of  the  actionable  words  at  other  times;*  so  in  an  action 
against  a  newspaper,  libelous  publications  from  the  same 
paper  relating  to  other  parties  are  admissible  for  the  pur- 
pose of  showing  that  the  paper  was  recklessly  conducted;* 
so  evidence  of  the  reckless  and  wanton  conduct  of  the 
defendant's  employees  in  writing  the  libel  is  admissible;' 
so  it  is  admissible  to  prove  mental  distress,  sickness,  etc' 
An  unsuccessful  attempt  to  justify,  except  in  some  states 
where  the  rule  is  abolished  by  statute,  may  be  taken  into 
account  in  aggravation  of  damages;*   and  where  special 


>  Austin  V.  Wilson,  4  Cash.  273;  50 
Am.  Dec.  766. 

^  Broiriage  v.  Prosser,  1  Car.  &  P. 
475.    See  Malice,  §  1301. 

^  Darljy  v.  Ouseley,  25  L.  J,  Ex.  230, 
2.3.3;  BLiko  v.  Stevens,  4  Fost.  &  F. 
235;  Risk  Allah  Bey  v.  Whitehurst, 
18  L.  T.  615. 

*  Hatch  V.  Potter,  2  Gilm.  725;  43 
Am.  Dec.  88;  Williams  v.  Harrison,  3 
Mo.  411;  Keaa  v.  McLaughlin,  2 
Serg.  &  R.  469;  Root  v.  Lowndes,  6 
Hill,  518;  41  Am.  Dec.  762;  Markham 
V.  Ruisell,  12  Allen,  573;  90  Am.  Dec. 
1G9.  Contra,  Frazer  v.  McCloskcy, 
fiON.  Y.  337;  10  Am.  Rep.  193;  Mc- 
Glenery  v.  Koiter,  3 Blackf .  488;  Stein 
;.  loeweuthal,  77  Cal.  340;  Sullivan i;. 
O'Lcaiy,  146  Mass.  322. 

^  (.!  ihsou  V.  Cincinnati  Enquirer,  5 
Cent.  L.  J.  380. 

"  Bruce  v.  Reed,  104  Pa.  St.  408;  49 
Am.  Rep.  586. 

'  Rca  V.  Harrington,  58  Vt.  181;  56 
Am.  Rep.  561;  ZeliflF  v.  Jennings,  61 
Te.x.  458.  VVhere  the  words  are  not 
actionable  per  se,  mental  distress,  ill- 
ness, expulsion  from  a  religious  so- 
ciety, etc.,  do  not  constitute  special 
damage.  But  where  the  words  are 
actionable  per  ae,  the  jury  may  take 


such  matters  into  their  consideration 
in  according  damages.  "Mental  pain 
or  anxiety  the  law  cannot  value,  and 
does  not  pretend  to  redress,  when  the 
unlawful  act  complained  of  causes  that 
alone;  though  where  a  material  dam- 
age occurs,  and  is  connected  with  it, 
it  is  impossible  a  jury,  in  estimating 
it,  should  altogether  overlook  the  feel- 
ings of  the  party  interested  ":  Lynch 
V.  Knight,  9  H.  L.  Cas.  598;  Chesley 
V.  Thompson,  137  Mass.  1.36. 

•  Waunak  v.  Foulkes,  12  Mees.  & 
W.  508;  Updegrove  v.  Zimmerman,  13 
Pa.  St.  619;  Gorman  v.  Sutton,  32  Pa. 
St.  247;  Freeman  %>.  Tiusley,  50  HI, 
497;  Root  v.  King,  7  Cow.  613;  Cay- 
auaugh  v.  Austin,  42  Vt.  570;  Harbi- 
son V.  Shook,  41  111.  141;  Gilman  v, 
Lowell,  8  Wend.  673;  24  Am.  Dec.  96; 
Purple  V.  Morton,  13  Wend.  9;  27 
Am.  Dec.  167;  Burckhalter  i'.  Coward, 
16  S.  C.  435;  Klineh  v.  Colby,  46  N.  Y. 
427;  7  Am.  Rep.  300.  A  plea  of  jus- 
tification cannot  bo  considered  in 
aggravation  of  damages  if  the  evi- 
dence introduced  in  its  support  shows 
that  defendant  had  reason  to  believe 
the  charge  trne:  Byrket  v.  Monohno, 
7  Blackf.  83;  41  Am.  Dec.  212. 


§1304 


SLANDER  AND  LIBEL. 


2300 


damage  is  not  essential  to  the  prtion,  it  may  nevertheless 
be  proved  to  enhance  the  damages.'  Evidence  of  plain, 
tiff's  good  character  is  inadmissible,  unless  it  is  in  issue 
by  the  pleadings,  or  has  been  attacked  by  evidence.^  In 
aLoCSsing  damages,  tlie  jury  may  take  into  consideration 
the  plaintiff's  position  or  his  character  as  a  public  ofTicer.' 
So  evidence  of  the  pecuniary  circumstances  of  the  slan- 
derer, his  position  and  influence  in  society,  is  admissible.* 
In  an  action  for  slander,  evidence  of  the  pecuniary  con- 
dition of  tlie  defendant  is  competent  to  increase  the  dam- 
ages, when  the  plaintiff  is  entitled  to  vindictive  or  punitory 
damages,  but  the  pecuniary  condition  of  the  plaintiff  is 
not  competent  for  such  purpose,  while  it  may  be  to  show 
actual  damage.* 

§  1304.  In  Mitigation.  —  In  mitigation  of  damages  the 
defendant  may  show  that  he  has  made  apology  and  amends 
as  far  as  able  for  the  injury  done."  So  he  may  show  that 
the  publication  was  made  in  good  faith  and  without  mal- 


'  Odgers  on  Libel  and  Slander,  318. 

"  Cornwall  v,  Richardson,  Ryan  & 
M.  305;  Guy  v.  Gregory,  9  Car.  &  P. 
581;  Fountain  v.  Buclle,  3  Q.  B.  6; 
Rhodes  V.  Ijames,  7  Ala.  574;  42  Am. 
Dec.  004.  But  in  Williams  v.  Haig,  3 
Rich.  302;  45  Am.  Dec.  774,  the 
contrary  was  hekl;  so  in  Buford  v. 
McClun,  1  Nott  &  MeC.  209;  Wil- 
liams«.  <  rreenmanso,  3 Dana.  432;  Scott 
r.  Peebles,  10  Miss.  540;  Adams  v. 
Lawson,  17  Gratt.  250;  94  Am.  Dec. 
455. 

*  Tillotson  V.  Cheetham,  3  Johns. 
50;  3  Am.  Dec.  45'J;  Lamed  v.  Buf- 
finton,  3  Mass.  540;  3  Am.  Dec.  185; 
Justice  V.  Kirlm,  17  Ind.  588;  Klumph 
V.  Dunn,  GO  Pa.  St.  141;  5  Am.  Rep. 
355.  In  an  action  for  libel  in  calling 
plaintiff  a  thief,  evidence  that  he  had 
a  wife  and  family  admissible  on  the 
question  of  damages:  Barnes  v.  Camp- 
bell, 00  N.  H.  27;  Rhodes  v.  Nagles, 
60  Cal.  077.  Evidences  of  the  plain- 
tiflf's  poverty  is  irrelevant:  Pool  v. 
Devers,  30  Ala.  072.    See  Reeves  v. 


Winn,  97  N.  C.  246;  2  Am.  St.  Rep. 
287. 

*Hosley  v.  Brooks,  20  111.  l],!;  71 
Am.  Dec.  252;  Brown  r.  Baines.  3<) 
Mich.  211;  33  Am.  Rep.  375;  Wilms 
V.  White,  26  Md.  380;  90  Am.  JJuc. 
113;  Ben:iettt;.  Hyde,  GCoim.  ;.>4;  15ar- 
bor  V.  Barber,  33  Conn.  335;  Kainey 
V.  Paisley,  13  Iowa,  89;  Ilayiun-  v. 
Cowden,  27  Ohio  St.  292;  22  Am.  Rep. 
303;  Reeves  v.  Winn,  97  N.  C.  'J[(i;  '2 
Am.  St.  Rep.  287.  But  see  Bimwu  <». 
Barnes,  39  Mich.  211;  33  Am.  Kep. 
375;  Rose  water  v.  Hoffman,  24  Neb. 
222.  On  the  question  of  exemplary 
damages,  defendant  may  show  tiiat  he 
is  a  man  of  no  property :  Roa  v.  1  lar- 
rington,  58  Vt.  181;  50  Am.  Rep.  m. 

»  Reeves  v.  Winn,  97  N.  C.  24G;  2 
Am.  St.  Rep.  287. 

®Trescat».  Maddox,  11  La.  Ann.  20G; 
66  Am.  Dec.  198;  Hotcliki.s:'  /•.  t)li- 
phant,  2  Hill,  510.  But  not  a  retrac- 
tion published  after  the  suit:  Even- 
ing News  Association  v.  Tryoii,  42 
Mich.  549;  36  Am.  Rep.  450. 


2300 


2361 


DAMAGES — EVIDENCE  —  PLEADING. 


§  1304 


jverthclcrjS 
G  of  plain- 
is  in  issue 
lencc.'^     In 
isideraliou 
blic  officer.' 
)f  the  slan- 
idmissible.'' 
aiiiary  con- 
ise  tlie  dam- 
or  punitory 
plaintilf  is 
T  be  to  show 


damages  the 
'  and  amends 
ay  show  tliat 
without  mal- 

2  Am.  St.  Rep, 

3,  20  111.  11.');  71 
ivn  V-  B;inK'-<,  H9 
iRep.  37."i-,  Wilms 
[80;  00  Am.  l)«c. 
LgCouu.  t24;  Bar- 
,un.  :«r);  Kiiniey 
,   89;   IlayiuT  v. 
29'J;2-2  Am.  Hep. 
1,  97  N.  C.  'JUi;  '1 
But  800  Brown  c. 
11;  Xi  Am.   Hep. 
tlofliiian,  'J4  Keb. 
Aon  of  exemplary 
may  show  tliat  he 
lerty:  Rca  o.  Har- 
56  Am.  Rep.  T.Ol. 
,,  97  N.  C.  2-lG;  2 

c,  11  La.  Ann. -200; 

1  HotcUkU:^  r.  Oli- 
But  not  a  retrac- 
■r  the  suit:  P'^veii- 
Tioii  V.  Ti-yoii,  45 
JRep.  450. 


ice/  or  that  he  did  not  originate  the  libel,  but  merely 
repeated  what  he  heard,''  or  published  what  he  had  seen 
in  another  paper.^  Evidence  of  general  reports  of  the 
truth  of  the  charge  is  admissible  in  some  f^cates;  in 
others,  not/  Evidence  of  the  plaintiff's  general  bad  char- 
acter, aiid  his  bad  character  as  to  the  crime  charged,  is 
admissible.^     It  has  been  held  that  evidence  of  the  ante- 


» Oilman  v.  Lowell,  8  Wend.  573; 
24  Am.  Dec.  110.  A  publisher  of  a 
newspaper  may  show,  under  the  gen- 
eial  issue,  that  he  was  imposea  on 
and  induced  to  publish  the  article  by 
certain  forged  letters  purporting  to 
liavc  bucu  written  by  reputable  citi- 
zens and  indorsing  the  charges  made: 
Storey  V.  Earley,  86  111.  461;  or  that 
the  publication  was  made  at  the  in- 
stauce  of  a  person  whose  name  was 
given  at  the  time,  and  who  paid  for  it 
111  the  usual  course  of  business:  Run- 
klo  ?'.  Meyer,  3  Yeates,  518;  2  Am. 
Dec.  393. 

■'  Cook  1).  Barkley,  1  K  J.  L.  109;  2 
Am.  Dec.  343;  Eastcrwood  v.  Quin,  2 
Brev.  (54;  3  Am.  Dec.  700.  But  see 
Anthony  v.  Stephens,  1  Mo.  254;  13 
Am.  Dec.  497. 

^  Hewitt  V.  Pioneer-Press,  23  Minn. 
178;  23  Am.  Rep.  080.  Contra,  Shea- 
han  r.  Collins,  20111. 325;  71  Am.  Dec. 
271. 

*  In  Pease  v.  Shippen,  80  Pa.  St.  513, 
21  Am.  Rep.  116,  it  is  said:  In  Eng- 
land and  in  some  of  the  states  such 
evidence  is  admissible  under  the  gen- 
eral issue  in  slander  in  mitigation  of 
damages:  Earl  of  Leicester  v.  Walter, 
2  Camp.  251;  Wetherbee  v.  Marsh,  20 
N.  H.  561;  51  Am.  Dec.  244;  Case  v. 
Marks.  20  Conn.  248;  Fuller  v.  Dean, 
31  Ala.  654;  Galloway  v.  Courtney, 
10  Rich.  414;  Calloway  o.  Middleton, 
2  A.  K.  Marsh.  372;  12  Am.  Dec.  409; 
Hcnaon  v.  Veatch,  1  Blackf .  369.  In 
other  states  it  has  been  held  that  gen- 
eral reports  of  the  truth  of  the  charges 
cannot  bo  given  in  evidence  in  n\itiga- 
tion  of  damages:  Walcott  v.  Hall,  6 
Mass.  514;  4  Am.  Dec.  173;  Alderman 
r.  French,  1  Pick.  17;  11  Am.  Dec.  114; 
Codwell  V.  Swan,  3  Pick.  370;  Matson 
«'.  Buek,  5  Cow.  499;  Root  v.  King,  9 
Cow.  613;  Cole  v.  Perry,  8  Cow.  214; 
Mapes  V.  Weeks,  4  Wend.  659;  luman 


V.  Foster,  8  Wend.  602;  Sheahan  v.  Col- 
lins,   20  111.   325;    71  Am.   Dec.   271; 
Young  V.  Bennett,  4  Scam.  43;  An- 
thony V.    Stephens,    1    Mo.    254;    13 
Am.   Dec.  497.      But  whatever  may 
have  been  at   one   time  the  rule   in 
this  state  as  to  the  admission  of  such 
reports  (Kennedy  v.  Gregory,  1  Binn. 
85;  Beehler  v.  Steever,  2  Whart.  318; 
Smith  V.  Stewart,  5  Pa.  St.  372),  it 
must  now  bo  regarded  as  the  settled 
law  of    Pennsylvania  that  they   are 
not  admissible  for  any  purpose:  Fitz- 
gerald V.   Stewart,    53  Pa.    St.    343; 
Lukehart  v.  Byerly,  53  Pa.  St.  418; 
Long  V.  Brougher,  5  Watts,  439;  Con- 
roe  V.  Conroe  and  Wife,  47  Pa.  St.  201. 
Held,  admissible  in  Bailey  v.  Kal.  Pub. 
Co.,  40  Mich.  251 ;  Treat  v.  Browning, 
4  Conn.  408;  10  Am.  Dec.  156;  Bowcn 
V.  Hall,  20  Vt.  232;  Huson  v.  Dale,  19 
Mich.   17;   2   Am.  Rep.   00;    Farr  v. 
Rasco,  9  Mich.  353;  80  Am.  Dec.  88. 
IJtld,  not  admissible    in    Bradley   v. 
Gibson,  9  Ala.  400;  Sanders  c.  John- 
son, 6  Blackf.  50;  30  Am.  Dec.  564; 
Kelley  v.  Dillon,  5  Ind.  420;  Beards- 
ley  r.  Broogmen,  17  Iowa,  290;  Ridley 
V.  Perry,  16  Me.  21;  Kenney  v.  Mc- 
Laughlin, 5  Gray,  3;  Peterson  v.  Mor- 
gan, 116  Mass.  350;  Wier  v.  Allen,  51 
N.  H.  177;  Hackett  t'.  Brown,  2  Hcisk. 
264;    Jarnigan  v.   Fleming,  43  Miss. 
710;    5  Am.    Rep.   514;    Haskins    v. 
Lumdsen,  10  Wis.  359;  McGee  v.  So- 
dusky,  5  J.  J.  Marsh.   185;    20  Am. 
Dec.  251;    Mahoney  v.  Belford,    132 
Mass.  393. 

*  Maxwell  v.  Kennedy,  50  Wis.  645; 
Eastland  v.  Caldwell,  2  Bibb,  21;  4 
Am.  Dec.  608;  Sawyer  v.  Eifert,  2 
Nott  &  McC.  511;  10  Am.  Dec.  033; 
Anthony  v.  Stephens,  1  Mo.  254;  13 
Am.  Dec.  497;  King  v.  Root,  4  Wend. 
113;  21  Am.  Dec.  102;  Gilman  v.  Low- 
ell, 8  Wend.  573;  24  Am.  Dec.  90; 
Lamoa  v.  Suell,  6  N.  H.  413;  25  Am. 


§1304 


SLANDER  AND   LIBEL. 


23G2 


cedoiit  general  reputation  of  the  plaintiff's  bad  chaructor 
is  admissible,  and  so  is  evidence  that  the  plaintill"  had 
certain  dcious  habits  which  would  load  him  to  commit 
such  acts:  as  that  ascribed  to  him  in  the  slander;  but 
that  evidence  of  a  general  report  that  plaintiff  had  actu- 
ally committed  the  particular  offense  charged  by  tlio 
slander  was  not  admissible.  In  this  case  an  oflicer 
charged  another  with  stealing  a  watch;  a  third  officer  in 
the  same  regiment  was  called  to  state  that  he  had  previ- 
ously heard  rumors  that  the  plaintiff  had  stolen  tliut 
watch,  but  his  evidence  was  rejected;  and  the  court,  on 
appeal,  held  that  such  rejection  was  right.*  But  general 
bad  cliaracter  subsequent  to  the  speaking  of  the  words 
cannot  be  proved,  even  though  such  character  could  not 
possibly  have  been  caused  by  the  words  spoken,  as  where 
the  charge  was  that  tlio  plaintiff  was  a  thief,  and  it  was 
sought  to  be  proved  that  she  was  subsequently  reputed  to 
be  a  common  prostitute.^  So  where  unchastity  is  im- 
puted to  a  female,  evidence  of  actual  prostitution  two 
months  after  the  speaking  of  the  words  is  not  admissible.' 
The  defendant  cannot  plead,  either  in  defense  or  mitiga- 
tion, that  the  plaintiff  has  been  guilty  of  a  specific  crime 


Dec.  4G8;  Waters  v.  Jones,  3  Port. 
U2i  29  Ain.  Dec.  2G1;  Edwards  v. 
Kansas  City  Times  Co.,  32  Fed.  Rep. 
813;  Parkhurst  v.  Kctchuin,  G  Allen, 
406;  83  Am.  Dec.  639;  Stone  v.  Var- 
ney,  7  Met.  86;  39  Am.  Dec.  7G2; 
Byrket  v.  Monohon,  7  Blackf.  83;  41 
Am.  Dec.  212;  Wetherbee  v.  Marsh, 
20  N.  H.  561;  51  Am.  Dec.  244;  Shea- 
han  V.  Collins,  20  111.  325;  71  Am.  Dec. 
271;  Shilling  v.  Carson,  27  Md.  175; 
92  Am.  Dec.  632;  Wright  v.  Schroeder, 
2  Curt.  548;  Rhodes  v.  Ijames,  7  Ala. 
574;  42  Am.  Dec.  604;  Holley  v.  Bur- 
gess, 9  Ala.  728;  Matthews  v.  Huntly, 
9  N.  H.  146;  Springstein  v.  Field, 
Anth.  185;  Iler  v.  Cromer,  Wright, 
441;  Severance  v.  Hilton,  24  N.  H. 
147;  Shipmaa  v.  Burows,  1  Hall,  399; 
Tibbs  V.  Brown,  2  Grant  Cas.  39; 
Chubb  V.  Gsell,  34  Pa.  St.  114;  Sey- 
Biour  V.  Merrils,  1  Root,  459;  Burtoo 


V.  March,  6  Jones,  409;  Moycr  v. 
Moycr,  49  Pa.  St.  210;  Wariior  v. 
Lockerby,  31  Minn.  421;  B.  v.  I.,  '.'2 
Wis.  372;  94  Am.  Dec.  604.  Rut  the 
defendant  cannot  in  mitigation  rely 
on  his  own  bad  character:  Hastings  v. 
Stetson,  130  Mass.  76. 

'  Bell  V.  Parke,  11  I.  C.  L.  R.  413. 
Defendant  may  prove  in  mitigation  of 
damages  in  action  of  slander  for  wonU 
spoken  against  the  chastity  of  the 
plaintiff's  wife,  that  said  wife,  l)efore 
her  marriage  with  the  plaintiff,  had 
lived  alone  with  him  in  the  ,saine 
house,  where  the  fact  of  their  so  living 
was  known  to  the  defenr*  iut  wliuii  Iiu 
spoke  the  words:  Reynolds  v.  Tucker, 
6  Ohio  St.  516;  67  Am.  Dec.  .303. 

*  Douglass  V.  Tousey,  2  Wend.  352; 
20  Am.  Dec.  616. 

3  Beggarly  ».  Craft,  31  Ga.  301);  7G 
Am.  Dec.  687. 


23G2 


23G3 


DAMAGES  —  EVIDENCE  —  PLEADING. 


§1304 


charactc^r 
LintilV  had 
10  commit 
mder;  but 

hud  aclu- 
ed   hy  iho 

an    otlicor 
1  officer  ill 
had  previ- 
3tolen   that 
le  court,  oil 
But  general 
f  the  words 
jr  could  not 
m,  as  where 
',  and  it  \v«as 
y  reputed  to 
,stity  is  im- 
titution  two 

admissible.' 
ie  or  mitiga- 

lecific  crime 

409;   Moycr  v. 

I2IO;  Waniur  v. 

421;  B.  V.  I.,  '.'2 

)C.  604.     But  the 

mitigation  ntly 
[cter:  Hastings". 

*I.  C.  L.  R.  413. 
J  in  mitigation  of 
Islander  for  wdiiU 

chastity  of  the 
,  said  wife,  liofore 
Ihe  plaintiff,  had 
[im  in   tho    same 

i  of  their  BO  living 
jjfenr'  '.ut  when  ho 
lynolds  v.  Tucker, 
Tm.  Dec.  353. 
key,  2  Weud.  352; 

It,  31  Ga.  309;  "S 


in  no  way  connected  with  the  alleged  defamatory  words 
or  with  tho  occasion  on  which  thoy  were  written  or 
spoken.* 

So  it  is  admissible  to  show  that  tho  words  wore  spoken 
ill  the  heat  of  passion  or  under  excitement,''  or  that  ho 
was  provoked  to  the  use  of  intemperate  language  ]>y  tho 
conduct  and  language  of  plaintiff.  Tho  law  makes  allow- 
ance in  a  case  of  this  kind  for  the  infirmitie,-,  of  human 
nature,  and  for  what  is  done  in  the  heat  of  passion  pro- 
duced by  the  improper  conduct  of  tho  adverse  party."*  And 
provocation  being  admissible  in  mitigation,''  it  is  compe- 
tent for  the  defendant  to  put  in  evidence  slanderous  .state- 
ments made  by  the  plaintiff  to  a  third  person  concerning 
the  defendant,  and  by  such  third  person  communicated 
to  the  defendant,  before  the  speaking  of  tho  slanderous 
words  by  the  latter."  The  anger  or  passion  of  defendant 
at  the  time  of  the  publication  of  tho  slanderous  words  is 
no  justification,  or  even  mitigation,  unless  it  is  shown 
the  passion  was  provoked  by  plaintiff,  and  even  then  it 
can  only  be  proved  in  mitigation  of  damages.*'  And  tho 
principle  which  allows  proof  of  provocation  in  mitigation 
of  damages  is  inapplicable  where  it  is  sought  to  prove, 
in  mitigation  of  damages  in  an  action  for  libel,  that  tho 
alleged   libelous   publication  was  induced  by  the  hasty 


'  Fisher  v.  Tice,  20  Iowa,  479;  For- 
sheo  ?).  Ahranis,  2  Iowa,  571;  Foun- 
tain V.  West,  23  Iowa,  9;  92  Am.  Dec. 
405. 

Mauch  V.  Jauch,  50  Ind.  135;  19 
Am.  Rup.  699;  Mousler  v.  Harding, 
33  Iiul.  170;  5  Am.  Rep.  195;  Flagg 
V.  Roberts,  67  111.  485. 

'  Newman  v.  Stein,  Mich.  1889. 

*Jiuioh  r.  .Tauch,  50  Ind.  1.35;  19 
Am.  Rep.  699;  Mooro  v.  Clay,  24  Ala. 
235;  00  Am.  Dec.  401.  Provided  the 
plaiutitf  i)articipated  in  tho  act  which 
is  alleged  was  the  provocation:  Wil- 
liams V.  McManus,  38  La.  Ann.  161; 
58  Am.  Rep.  171;  and  the  occasion  was 
connected  with  tho  defendant's  act: 
Porter  v.  Henderson,  11  Mich.  20;  82 
Am.  Dec.  59.     "  There  can  be  uo  set- 


ofiF  of  one  libel  or  misconduct  against 
another;  but  in  estimating  the  com- 
pensation for  the  plaintiff's  injured 
feelings,  the  jury  might  fairly  consider 
the  plaintiff's  conduct,  and  the  degreo 
of  respect  he  has  shown  for  tlio  feelings 
of  others":  Blackburn,  J.,  in  Kelly  v. 
Sherlock,  L.  R.  1  Q.  B.  098.  But  not  a 
provocation  given  to  the  defendant  by 
the  plaintiff  on  the  evening  before  the 
slanderous  words  were  uttered:  Sheffill 
V.  Van  Deusen,  15  Gray,  485;  77  Am. 
Dec.  377.  A  slander  is  not  ju.stitied 
by  tho  circumstance  that  the  first  harsh 
expression  was  used  by  tho  one  slan- 
dered: Hosley  ?'.  Brooks,  20  111.  115; 
71  Am.  Dec.  252. 

»  Walker  v.  Flynn,  130  Mass.  151. 

•  Miller  v.  Johnsou,  79  111.  59. 


§  1304 


SLANDEU   AND   LIDEL. 


20G1 


promptiiiji;3  of  pnssion  caused  by  a  provions  provoking 
puhlioiitiuii  at  tlio  instance  of  the  plaintiff,  in  itself  inolo- 
vunt  to  llio  issue  in  the  action,  if  there  had  been  timound 
opportunity  for  hot  blood  to  cool.  And  the  answer  in  suih 
case  alleging  that  the  publication  which  induced  the  lihil 
in  (piestion  was  made  the  day  before  the  latter  publicatiot), 
but  not  stating  when  it  came  to  the  knowledge  of  the  de- 
fendant, .nay  bo  properly  stricken  out.'  Where  an  alleged 
libelous  article  is  one  of  a  series  relating  to  a  nuitter  of 
public  concern,  the  defendant  may  introduce  them  all  to 
show  good  faith  on  his  part.''  But  ho  cannot  show  the 
recovery  of  damages  in  favor  of  the  plaintiff  against  Iho 
defendant  in  another  action  for  a  libel  published  in  one 
of  a  series  of  numbers  of  the  same  paper,  and  which  con- 
tained the  same  libelous  words  as  wore  charged  in  tho 
present  suit.'  But  evidence  is  admissible  in  mitigation 
of  damages  to  show  that  plaintiff  had  previously  himself 
published  a  libel,  provided  it  bo  also  known  that  this  libel 
had  come  to  the  defendant's  knowledge  and  occasioned  tho 
publication  of  the  libel  now  sued  on;*  but  counter  publi- 
cations  which  are  not  libelous,  and  could  have  no  force 
as  a  provocation,  are  not  admissible  in  mitigation  of 
damages.* 

And  in  no  case  can  tho  defendant  avail  himself  of  any 
facts  in  mitigation  of  damages,  unless  it  appears  that  he 
was  informed  thereof  when  he  uttered  the  words,  and 
that  he  did  so  under  a  belief  in  their  truth.  This  need 
not  be  by  direct  evidence,  if  tho  facts  are  shown  to  have 
been  so  notorious  as  to  create  a  fair  presumption  that 


'  Quinby  v.  Minnesota  Tribune  Co., 
38  Minn.  528;  8  Am.  St.  Rep.  093. 

^  Scrippa  v.  Foster,  41  Mich.  742; 
Moreheail  v.  Joues,  2  B.  Moa.  210; 
36  Am.  Dec.  609. 

*  Tillotson  V.  Cheetham,  3  Johns.  56; 
3  Am.  Deo.  459. 

♦  H-irtforJ  V.  State,  96  Ind.  461;  49 
Am.  Rep.  185;  Finnerty  v.  Tipper,  2 
Camp.   76;    Aatony   Fasquiu'a  Case, 


cited  1  Camp.  351 ;  Tarploy  v.  Blabev, 
2  Bing.  N.  C.  437;  May  v.-.  Brown,  3 
Barn.  &  C.  113;  4  Dowl.  &  U.  070; 
Wiitts  V.  Fraser,  7  Ad.  &  E.  '2l'S;  7 
Car.  &  P.  369;  Wakley  v.  Joluison, 
Ryan  &  M.  422;  Shattuc  v.  McAitlmr, 
29  Fed.  Hop.  136;  Maynard  v.  Bciirds- 
ley,  7  Wend.  560;  22  Am.  Dec.  505. 

*Whittemore  v.  Weiss,   33  Micli. 
348. 


23G4 

provolviu^; 
■self  irrclo- 
u  time  im<l 
vvor  ill  siu'U 
0(1  the  \\\>v\ 
)ublicivtiou, 
0  of  tho  do- 
c  iiu  alle-red 
tt  miitioi'  of 
them  all  to 
lot  show  t\io 
'  aRuiuBt  tho 
ishod  in  ono 
d  which  cou- 
Lirgcd  in  tho 
n  mitigaliou 
ously  himsolf 
that  this  hbcl 
ccasioncd  the 
louuter  pubU- 
lavo  no  force 
mitigation  of 

imsclf  of  any 
pears  that  he 

e  words,  and 
This  need 
phown  to  have 

umption  that 

Tarploy  v.  Blubey, 
I  May  '(.'•  Bri)wu,  •' 
Dowl.  &  B.  'i'O; 
.  Ad.  &  E.  '^-Jin  7 
lakley  v.  Johnson, 
lattuc  V.  McAi'tlmr, 
layiiard  v.  Be:inls- 
B  Am.  Dec.  50o. 
Weias,   33  ^lic"-. 


2305 


DAMA0K8  —  EVIDENCE— PLEADING. 


§  1204 


thoy  had  como  to  hi.s  knowlodgo."  Evidence  in  mitiga- 
tion of  (himages  is  admissible,  notwithstanding  a  ph'a  of 
jijstilication.''  Under  the  Now  York  code,  the  (k-fciuhmt 
may  prove  in  mitigation  of  damages  such  facts  and  (dr- 
(um.stancos  as  show  tho  absence  of  malice,  though  they 
tend  to  prove  the  truth  of  the  libel,  and  he  may  do  this 
witlmut  averring  in  his  answer  tho  truth  of  the  libel." 

Evidence    is    not    admissible   in    mitigation    that   the 
jdaintiff  has  stated  that  tho  slander  did  him  no   injury.* 
So  a  bare  expression  of  satisfaction  at  an  apology  and 
recantation  will  not  operate  as  a  release  of  the  right  of 
ticlion.''     An  attempt  of  tho  husband  to  prevent  tho  cir- 
culation   of  tho  slander   spoken  by  his  wife  cannot  bo 
proved  in  mitigation  of  damages  in  an  action  of  slander 
brought  against  the  two."     Though  the  answer  sets  up  no 
lucts    in   mitigation    of   damages,   tho    manner,   nature^ 
extent,  and  circumstances  of  the  publication  being  proved 
by   plaintiff,  an    instruction  that   as   defendant    alleges 
nothing  in  mitigation,  the  jury  could  consider  nothing,  is 
iiniiroper,  as  any  circumstances  of  a  mitigatory  character 
proved  by  plaintiff  should  bo  regarded.^ 

iM.rsTUATioNS. —  Defendant  was  sued  for  slander  in  charging 
pluiiitiir  with  unchastity.  Held,  that  ho  might  show,  by 
way  of  mitigation,  the  circumstances  upon  which  ho  based  his 
cliargo.  8uch  as  the  physical  appearance  of  pregnancy  in  plain- 
tiff, an(t  the  fact  of  her  being  with  a  man  under  suspicious 
circumstances:  Doe  v.  Roe,  32  llun,  628.  The  slander  consisted 
ill  calling  plaintiff  a  thief  and  scoundrel.  Defendant  testified 
that  at  tho  time  he  used  tho  language  ho  believed  that  his 
property  had  been  stolen.  Held,  admissible  in  mitigation  of 
damages:  Morris  v.  Lachman,  68  Cal.  109.  Defendant  said 
of  plaintiff:  "You  are  a  thief  and  a  scoundrel;  you  have  mado 
false  entries  in   my  books;   you  have  sold  flour  for  me,   and 

Ann. 


'  lliitlield  V.  Lasher,  57  How.  Pr. 
'-'SS;  17  Hun,  23;  Bailoy  v.  Hyde,  3 
Conii.  4i;H;  8  Am.  Dec.  202. 

■  Motvlioad  V.  Jones,  2  B.  Mon. 
210;  M]  Am.  Doc.  600. 

MJusli  (..  Prosser,  11  N.  Y.  347. 

'  I'ortor  V.  Hcudcrson»  11  Mich.  20; 
Sii  Am.  Due.  59. 


*Tresca  v.  Maddox,    11  La. 
206;  66  Am.  Dec.  198. 

«  Yeates  v.  Reed,  4  Blackf.  463;  32 
Am.  Dec.  43. 

'  Moore  v.  Manufacturers'  National 
Bank,  21.  N,  Y.  St.  Rep.  652. 


§  1305 


SLANDER  AND   LIBEL. 


2366 


collected  therefor  more  than  you  accounted  to  me  for,  and  kept 
the  balance,"  etc.  Held,  that  the  defendant  might  show  in 
mitigation  of  damages  that  the  plaintiff  had  been  discharged 
from  his  employment  several  weeks  before  the  slanderous  words 
were  spoken,  and  had,  after  his  discharge,  gone  about  among 
the  defendant's  customers,  warning  them  that  defendant  would 
charge  them  usurious  interest,  sell  them  out,  and  break  them 
up:  Palmer  v.  Lang,  7  Daly,  33.  Defendant  had  charged 
plaintiff,  a  female,  with  incontinency.  Held,  that  he  might 
show  his  mental  suffering  caused  by  his  belief  that  she  had 
seduced  his  son:  McDougald  v.  Coward,  95  N.  C.  368. 

§  1305.  Special  Damage — What  is  and  What  is  not. 
—  Special  damages  are  such  as  the  law  will  not  presume 
to  have  followed  the  publication  of  the  defamation,  but 
which  must  be  alleged  and  proved.'  Such  damage  must 
be  the  natural,  immediate,  and  legal  consequence  of  the 
words;  it  is  not  enough  thai  they  have  actually  caused 
damage,  if  it  cannot  be  presumed  that  the  defendant 
when  he  uttered  the  slander  or  published  the  libel  knew, 
or  ought  to  have  known,  that  such  damage  would  result.'^ 
Such  loss  may  be  either  the  loss  of  some  right  or  position 
already  acquired,  or  the  loss  of  some  future  benefit  or 
advantage  the  acquisition  of  which  is  prevented.' 
Special  damage  may  be  the  loss  of  any  material  temporal 
advantage.*  The  loss  of  a  marriage,®  of  employment,  of 
custom,  of  profits,  and  even  of  gratuitous  entertainment 
and  hospitality,®  will  coudtitute  special  damage;  so  will 
the  loss  of  a  gratuity  or  present,'  or  of  the  consortium  of 
a  husband,*   or  of  an  office,®   or  the  refusal  of  employ- 


'  An  allegation  of  special  damage 
will  not  help  the  plaintifT,  if  the  words 
are  not  defamatory:  Legg  v,  Dunlevy, 
10  Mo.  App.  461. 

'  Olmstead  v.  Brown,  12  Barb.  657; 
Beach  v.  Ranney,  2  Hill.  307;  An- 
onymous, 60  N.  Y.  262;  19  Am.  Rep. 
174;  Pettibone  v.  Simpson,  66  Barb. 
492;  McQueen  v.  Fulgham,  27  Tex. 
463;  Legg  v.  Dunlevy,  10  Mo.  App. 
463. 

B  Odgers  on  Libel  and  Slander,  310. 


*  Matthew  v.  Crass,  Cro.  Jae.  323, 
'  Matthew  v.  Crass,  Cro.  Jae.  323. 

*  Moore  v.  Meagher,  1  Taunt.  39; 
Davies  v.  Solomon,  L.  R  7  Q.  B.  112; 
Storey  v.  Challands,  8  Car.  &  P.  284; 
Bergmann  v.  Jones,  94  N.  Y.  51. 

'  Bracebridge  v.  Wilson,  Lilly's 
Entries,  61;  Hartley  v.  Herring,  8 
Term  R.  130. 

*  Lynch  v.  Knight,  9  H.  L.  Gas.  589, 
per  Campbell  and  Cran  worth,  J  J. 

*  Davis  V.  Gardiner,  4  Rep.  17. 


2366 


2367 


DAMAGES  —  EVIDENCE  —  PLEADING. 


1305 


,T,  and  kept 
ht  show  in 
discharged 
lerous  words 
bout  among 
ndant  would 
break  them 
lad   charged 
at  he  might 
that  she  had 
568. 

^^Hiat  is  not. 

not  presume 
amation,  hut 
damage  must 
quence  of  the 
dually  caused 
the  defendant 
,he  libel  knew, 
3  would  result.^ 
Tht  or  position 
Aire  benefit  or 
prevented.' 
terial  temporal 
^nploymeut,  of 
entertaiinneut 

image;  so  will 
iQ  consortium  ot 
,sal  of  employ- 

^raas    Cro.  Jac.  323. 
■Scro.Jac.323- 
' „„u'pr    1  Taunt.  39; 

artley   v.  Herring,  8 


ment,'  or  the  loss  of  a  situation,''  or  that  persons  who 
had  been  in  the  habit  of  so  doing  refused  any  longer  to 
supply  plainfi^^  with  food  and  clothing,^  or  that  the 
plaintiff  was  turned  away  from  the  house  of  her  uncle, 
where  she  had  previously  been  a  welcome  visitor,  and 
charged  not  to  return  till  she  had  cleared  up  her  cliar- 
acter,"*  or  that  the  plaintiff  was  refused  entertainment  at 
a  public  house.^  But  mere  annoyance  or  mental  anxiety, 
or  even  physical  illness,  occasioned  by  the  slanderous 
report,  is  not  sufficient,*'  nor  the  loss  of  the  society  of 
friends  and  neighbors,^  nor  the  desertion  of  the  plaintiff's 
wife,®  nor  that  the  plaintiff  was  expelled  from  a  religious 
society  of  which  she  was  a  member,''  nor  the  loss  of  the 
privilege  of  half-Iare  tickets  on  a  railroad  by  a  clergy- 
man,^" nor  an  apprehen-^iion  of  future  loss." 

So  the  special  damage  must  be  the  proximate,  and  not 
liie  remote,  consequence  of  the  defamatory  words,  and 
must  bo  their  direct  result,  and  not  the  compound  result, 
of  the  words  and  other  matters,  for  which  the  defendant 
is  not  responsible.  But  it  may  be  the  act  of  a  third  party, 
and  then  if  the  defendant  might  reasonably  have  antici- 


1  Sterryu.  Foreman,  2  C3r.  &  P.  592. 

2  Martin  v.  Strong,  5  Ad.  &  E.  535. 
But  alUer  where  the  dismissal  is 
colorable,  the  master  intending  to 
take  the  servant  back  when  the  law- 
suit is  determined:  Coward  v.  Welling- 
tou,  7  Car.  &  P.  5.31. 

'  Beach  v.  Ranney,  2  Hill,  309. 

♦  Williams  v.  Hill,  19  Wend.  305. 

*  Ohnsted  v.  Miller,  1  Weud.  oOG. 
"AUsop  V.    Allsop,  5  Hurl.  &  K 

634;  Lynch  v.  Knight,  9  H.  L.  Cas. 
577;  Prime  v.  Eastwood,  45  Iowa,  640; 
Terwilliger  v.  Wands,  17  N.  Y.  54; 
72  Am.  Dec.  420,  the  court  saying: 
'ii  would  be  highly  impolitic  to  hold 
ail  language  wounding  the  feelings 
and  affecting  unfavorably  the  health 
ami  ability  to  labor  of  another  a 
ground  of  action;  for  that  would  be  to 
make  t.io  right  of  action  depend  often 
upon  whether  the  sensibilities  of  a 
person  spoken  of  are  easily  excited  or 
otherwise,    his  strength  of   miud  to 


disregard  abusive  insulting  remarks 
conce  ag  him,  and  his  physical 
strength  and  ability  to  bear  theui. 
Wordi  which  would  make  hardly  au 
impression  on  most  person.s,  and 
would  be  thought  by  them,  and  should 
be  by  all,  undeserving  of  notice, 
might  be  exceedingly  painful  to  some, 
occasioning  sickness  and  an  interrup- 
tion of  ability  to  attend  to  their  ordi- 
nary avocations. "  Nor  in  an  action 
by  the  husband  is  the  loss  of  the 
wife's  services  caused  by  illness,  the 
result  of  the  defamatory  words,  suf- 
ficient special  damage:  Wilson  v. 
Goit,  17  N.  Y.  445. 

'  Modhurst  v.  Balam,  cited  1  Sid. 
397;  Barnes  v.  Bruddel,  1  Lev.  261;  1 
Sid.  396. 

^  Georgia  v.  Kepford,  45  Iowa,  48. 

'  Roberts  v.  Roberts,  5  Best  &  S. 
384. 

'>•  Shurtleff  i>.  Stevens,  51  Vt.  501. 

"  Onslow  V.  Home,  3  Wils.  188. 


§ 


1305 


SLANDER   AND   LIBEL. 


23G8 


patod  such  a  result,  he  is  liable.  "To  make  the  words 
actionable  by  reason  of  special  damage,  the  coiisequonce 
must  be  such  as,  taking  human  nature  as  it  is  with  its 
infirmities,  and  having  regard  to  the  relationship  of  the 
parties  concerned,  might  fairly  and  reasonably  have  been 
anticipated  and  feared  would  follow  from  the  speaking  of 
the  words."  *  But  it  is  essential  that  the  party  whose  act 
constitutes  the  special  damage  should  have  believed  the 
words  to  be  truc.^ 

Illustrations.  —  A  vicar  in  open  church  falsely  declared  that 
the  plaintiff,  one  of  his  parishioners,  was  excommunicated,  and 
refused  to  celebrate  divine  service  till  the  plaintiff  departed  out 
of  church,  whereby  the  plaintiff  was  compelled  to  quit  the 
church,  and  was  scandalized,  and  was  hindered  of  hearing 
divine  service  for  a  long  time.  Held,  that  an  action  lay:  Bar- 
nahas  v.  Traunter,  1  Vin.  Abr.  39G.  In  consequence  of  defeiul- 
ant's  words,  a  friend  who  had  previously  voluntarily  promised 
to  give  the  plaintiff,  a  married  woman,  money  to  enable  licr  to 
join  iier  husband  in  Australia,  whither  he  had  emigrated  throe 
years  before,  refused  to  do  so.  Held,  sufficient  special  damage: 
Coreornn  v.  Coreoraii,  7  I.  R.  C.  L.  272.  Plaintiff  lost  his  place 
as  clerk  and  wcighmaster  by  reason  of  defendant's  h;iving 
falsely  and  maliciously  said  of  plaintiff,  "  He  has  caused  the 
downfall  and  ruin  of  my  clerk,"  and,  in  effect,  that  defendant 
did  not  want  plaintiff  to  weigh  any  goods  consigned  to  defend- 
ant. Held,  that  the  words  were  actionable:  Wilsony.  Coftman, 
65  Md.  190.  In  consequence  of  defendant's  slandering  the 
plaintiff,  a  dissenting  minister,  his  congregation  diminished. 
Held,  insufficient,  as  it  did  not  appear  tiiat  the  plaintiff  lo'^t 
any  emolument  thereby:  Hopivood  v.  Thorn,  10  L.J.  Com.  P.  lU; 
8  Com.  B.  293.  A.  told  N.  that  T.  had  committed  adultery  with 
Mrs.  F.  N.  had  married  Mrs.  F.'s  sister,  and  was  an  intimate 
friend  of  T.;  N.  told  T.  what  people  were  saying  of  him,  where- 
upon T.  became  melancholy,  lost  his  appetite,  and  was  unable  to 
work.  Held,  that  such  distress  and  illness  were  not  suflicient 
special  damage:   Tenvilligcr  v.  Wands,  17  N.  Y.  54;  72  Am.  Dec. 


'  Lynch  v.  Knight,  9  Hofifni.  L.  Cas. 
60;  Haddan  v.  Lott,  15  Com.  B.  411; 
Hicks  V.  Foster,  13  Barb.  GG5;  Geor- 
gia ('.  Kopford,  45  Iowa,  48. 

'^  Anonymous,  GO  N.  Y.  262;  19  Am. 
Ptcp.  174,  the  court  saying:  "I  do 
not  thiuk  i-pecial  damage  can  be 
X)rcdioatcd  upon  the  act  of  any  one 


who  wholly  disbelieves  the  trutli  of  the 
story.  It  i^  inducing  acts  injurious  to 
the  plaintiff  caused  by  a  belief  of  tiic 
truth  of  the  charge  made  '  y  the 
defendant  tliat  constitutes  tlie  dam- 
age which  the  law  redresses."  But  it 
has  been  held  otherwise  in  Euglaud; 
Knight  V.  Gibbs,  1  Ad.  &  E.  43, 


23G8 


2369 


DAMAGES  —  EVIDENCE  —  PLEA  DING. 


1305 


he  words 
sequence 
;  with  its 
lip  of  tho 
aave  been 
)ealiiug  of 
whoso  act 
lieved  the 


eclared'tbat 
licated,  and 
departed  out 
to  quit  t1>e 
1  of  hearing 
onlay.  B<'i- 
ce  of  defend- 
ily  promised 
enable  her  to 
ligrated  three 
3cial  damage: 
lost  his  place 
lant's  having 
,8  caused  the 
hat  defendant 
.ed  to  delend- 
pnv.  CoUman, 
[landering  the 
diuiinished. 
plaintiff  lo^t 

^j.com.r.'.^^; 

adultery  with 
,s  an  intimate 
,f  him,  wlieve- 
was  unable  to 
not  suflicient 
72Avn.i)*''C- 

lea  the  truth  of  the 
Lactainivniousto 
lly  a  belief  of  t be 

Ktitutcs  the  .lam- 

^wise  in  Eughiud: 
U.  &  E.  43. 


420.    The  defendant  said  of  a  married  man  that  he  had  liad 
two  hastards;  "by  reason  of  which  words  discord  arose  between 
him  and  his  wife,  and  they  were  likely  to  have  been  divorced." 
Held,  no  special  damage:  BarmuniVs  Case,  Cro.  Jac.  473.     The 
defendant  falsely  imputed  incontinence  to  a  married  woman. 
In  consequence  of  his  words  she  lost  the  society  and  friendship 
of  her  neighbors,  and  became  seriously  ill  and  unable  to  attend 
to  her  affairs  and  business,  and  her  husband  incurred  expense 
in  curing  her,  and  lost  the  society  and  assistance  of  his  wife  in 
his  domestic  affairs.     Held,  that  neither  husband  nor  wife  had 
any  cause  of  action:  Allsop  v.  Allsop,  5  Hurl.  &  N.  534;  29  L. 
J.  Ex.  315;  Riding  v.  Smith,  1  Ex.  Div.  91;  45  L.  J.  Ex.  281.  De- 
fendant charged  that  plaintiff  had  been  guilty  of  the  nuirder 
of  one  Daniel  Dolly;  the  plaintiff  thereupon  demanded  that  an 
inquest  should  be  taken  on  Dolly's  body,  and  incurred  expense 
thereby.     Held,  that  such  expense  was  recoverable  as  special 
damage,  though  it  was  not  compulsory  on  the  plaintiff  to  have 
an  inquest  hold:  Pcake  v.  Oldham,  Cowp.  275;  2  W.  Black.  960. 
A  slandered  the  plaintiff  to  his  master,  B.     Subsequently  B,  dis- 
covering from  another  source  that  the  plaintiff's  former  master 
had  discharged  him  for  misconduct,  illegally  discharged  hini 
in  the  middle  of  his  term.     Held,  not  the  proximate  result  of  A's 
sUuuler:   Vicars  v.  Wilcncks,  8  East,  1.     Plaintiff  alleged  that 
certain  persons  would  have  recommended  him  to  X,  Y,  &  Z, 
liad  not  the  defendant  spoken  certain  defamatory  worcls  of  him 
oa  th(!  Royal  Exchange,  and  that  X,  Y,  and  Z.  would,  on  the 
recommendation  of  those  persons,  have  taken  the  plaintiff  into 
their  employment.    The  plaintiff  claimed  damages  for  the  loss 
of  the  employment.     Held,  too  remote,  for  it  was  caused  by  the 
non-recommendation,  not  by  the  defendant's  words:  Stcrry  v. 
Foreman,  2  Car.  &  P.  592.     In  an  action  of  slander  of  title  to 
a  patent,  the  plaintiff  alleged  as  special  damage  that  in  conse- 
quence of  defendant's  opposition,  the  solicitor-general  refused 
to  allow  the  letters  patent  to  be  granted  with  an  amended  title, 
as  the,  plaintiff  desired.  Held,  that  this  damage  was  too  remote, 
being  the  act  of  the  solicitor-general,  and  not  of  the  plaintiff: 
Haddon  v.  Lott,  15  Com.  B.  411 ;  24  L.  J.  Com.  P.  49;  Kerr  v.  Shcd- 
ien,  i  Car.  &  P.  528.     The  plaintiff  engaged  Mdlle.  Mara  to 
sing  at  his  concerts;  the  defendant  libeled  Mdlle.  Mara,  who 
consequently  refused  to  sing,  lest  she  should  be  hissed  and  ill- 
treated  ;  the  result  was  that  the  concerts  were  more  thinly  at- 
tended than  they  otherwise  would  have  been,  whereby  the  plain- 
tifT  lost  money.     Held,  that  the  damage  to  the  plaintiff  was  too 
remote:  Ashley  v.  Harrison,  1  Esp.  48.  The  defendant  asserted 
that  a  married  woman  was  guilty  of  adultery,  and  she  was  con- 
sequently expelled  from  the  congregation  and  Bible  society  of 
her  religious  sect,  and  was  thus  prevented  from  obtaining  acer- 

149 


1306 


SLANDER  AND   LIBEL. 


2370 


tificate,  without  which  she  could  not  become  a  member  of  any 
Bimilnr  society.     Heldy  no  action  lay:  Roberts  v.  Roberts,  5  Best 
&  S.  384.    A  declaration  alleged  that  the  defendant  falsely  and 
maliciously  sipokc  of  the  plaintiff,  a  working  stone-maBon,  "  He 
was  the  ringleader  of  the  nine-hours'  system,"  and  "  He  has 
ruined   the  town  by  bringing  about  the  nine-hours'  system," 
and  "  Ho  has  stopped  several  good  jobs  being  carried  out,  by 
being  the  ringleader  of  the  system  at  Llanelly,"  whercl)y  the 
plaintiff  was  prevented  from  obtaining  employment  in  his  trade 
at  Llanelly.     Held,  that  the  alleged  damage  was  not  the  natural 
or  reasonable  consequence  of  the  speaking  of  such  words:  Mil- 
lery. David,  L.  11.9  Com.  P.  118;  43  L.J.  Com.  P.  84.  The  plaintiff 
was  under  twenty-one  and  lived  at  home  with  her  father,  and 
the  defendant  foully  slandered  her  to  her  father,  inconsequence 
of  which  he  refused  to  give  her  a  silk  dress  and  a  course  of 
music  lessons  on  the  piano,  which  he  had  promised  her,  al- 
though he  entirely  disbelieved  the  defendant's  story.   Held,  not 
to  be  such  special  damage  as  will  sustain  the  action:  Anonym- 
ous, 60  N.  Y.  2G2;  19  Am.  Rep.  174.'     A  tells  B  that  C,  a  gov- 
ernment  clerk,  had  spoken  disrespectfully  of  his  chief,  1),  and 
this  coming  to  the  ears  of  D,  he  discharges  C  from  ofiice.   Held, 
that  the  damages  are  too  remote  to  enable  C  to  maintain  an 
action  of  slander  against  A:    Knight  v.  Blackford,  3  Mackey, 
177;  51  Am.  Rep.  772. 

§  1306.  Pleading. — In  slander  the  complaint  must  set 
out  the  actionable  words  spoken,  not  simply  a  narrative 
of  what  occurred  on  a  certain  occasion;^  but  it  is  enough 
to  set  out  the  substance  of  the  words  spoken;'  and  in  libel 
the  entire  article  alleged  to  be  libelous  need  not  be  set 


'  Tho  conrt  saying:  "  It  is  obvious 
that  so  far  from  being  natural,  it 
would  be  highly  unnatural  for  a  pa- 
rent to  withhold  any  favor  or  kind- 
ness from  his  child  on  account  of  a 
falsehood  reputed  about  it.  On  tho 
contrary,  the  tendency  would|naturally 
and  legitimately  be  to  induce  more 
kindness  and  greater  indulgence." 

•■'  Burns  v.  Williams,  88  N.  C.  159. 

»Nye  V.  Otis,  8  Mass.  122;  5  Am. 
Dec.  79;  Whiting  v.  Smith,  13  Pick. 
364;  Gay  v.  Homer,  13  Pick.  535; 
Kennedy  v.  Lowry,  1  Binn.  393; 
Grubbs  v.  Kyzer,  2  McCord,  305; 
Pond  V.  Hartwell,  17  Pick.  269;  Allen 
«.  Perkins,  17  Pick.  369;  Lee  v.  Kaue, 


G  Gray,  495.  A  complaint  setting  out 
tho  alleged  libelous  publication,  and 
then  averring  thus:  "Ther<!l)y  char- 
ging, and  intending  to  charge  that 
plaintiff  was  guilty  of  tho  crime  of  per- 
jury and  of  falsehood,  and  of  making 
the  false  report  in  tho  leaving  out  of 
said  report  of  the  said  item  of  ilfteen 

thousand  dollars when  iu  truth 

and  in  fact  tho  cost  of  said  bridge  was 
in  said  report, "  substantially  coiiipiies 
with  section  372  of  tho  Revised  Stat- 
utes of  Indiana,  declaring  that  it  sliaii 
be  suflBcient  to  state  generally  tliat 
the  defamatory  matter  was  spoken  of 
plaintiff:  Prosser  v.  Callis,  117  luil- 
105. 


2370 


2371 


DAMAGES — EVIDENCE — PLEADING. 


1306 


ber  of  any 
)crfs,  5  Bost 
falsely  and 
naBon,  "  He 
d  "lie  haa 
rs'  system," 
ricd  out,  by 
wbercby  tlie 
tin  bis  "trade 
,t  tbe  natural 
i  words:  Mil- 
Tbc  plaii^tiil 
it  fatber,  and 
1  consequence 
d  a  course  of 
nised  ber,  al- 

Lion:  Anonym- 
tbat  C,  a  gov- 
8  cbicf,  1^,  and 
IB  office.  Ildd, 
to  maintain  an 
,rd,  3  ^lackey, 

daint  must  set 
)ly  a  narrative 
it  it  is  enough 
i;3  and  in  libel 

3ed  not  be  set 

>inplamt  setting  out 

^g.  .'Thereby  clwr- 
Sg  to  cUargo  that 
V  of  tbo  crime  of  per- 

food,  and  ef  makmg 
u  the  leaving   uU 

3  said  item  of  n  t  en 

when  in  trutn 

,;t  of  said  bridge  was 

^Jstautiallvcomg 

of  the  iicvi«;^J  £, 


out.*     Slanderous  words  in  a  foreign  tongue  must  bo  set 
out  in  the  original,  and  with  a  translation.^   An  averment 
that  the  defendant  is  proprietor  of  the  paper,  and  that 
the  libelous  matter  was  published  in  his  paper,  is  a  suf- 
ficient averment  of  a  publication  by  him.'    The  degree 
of  certainty  with  which  a  libel  should  be  set  forth  depends 
on  the  subject-matter;  and  where  the  ridicule  consists 
mainly  in  postures  and  movements,  the  use  of  general 
language   is   unavoidable.''      Different   actionable   words 
spoken  at  different  times  constitute  several  and  distinct 
causes  of  action,  and  should  be  embodied  in  separate 
counts.^    If  the  complaint  states  that  the  publication  was 
a  libel,  it  is  unnecessary  to  aver  that  it  is  false  and  ma- 
licious,* or  without  probable  cause.'     It  is  sufficient  to 
allege  that  the  words  are  false  and  malicious,  without  lay- 
ing a  scienter,  even  when  the  words  were  part  of  a  privi- 
leged communication.^     It  is  not  necessary  to  set  forth 
an  imputation  of  crime  with  the  particularity  necessary 
in  an  indictment  for  the  offense.®     In  a  declaration  for 
slander  in  charging  the  plaintiff  with  perjury  in  another 
state,  it  must  be  averred  that  by  the  laws  of  such  other 
state  perjury  is  an  offense  to  which  is  annexed  an  infamous 
punishment.'"     But  in  an  action  for  words  imputing  an 
offense  criminal  by  statute  only,  the  statute  need  not  be 
referred  to."     In  an  action   of  slander  in  which   it  is 
alleged  that  the  defendant  accused  the  plaintiff  of  killing 
a  particular  person,  it  is  necessary  to  allege  that  such  per- 
son is  dead." 


'  Weir  V.  Hosa,  6  Ala.  881;  Blethen 
r.  Stewart,  Minn.  1889. 

-  Kersehbaugher  v.  Slusser,  12  Iml, 
4.'):!;  Wormouth  v.  Cramer,  3  Wend. 

3114;  K V.  U ,  20  Wis.  239;  91 

Am.  Due.  397. 

'  Hunt  V.  Bennett,  4  E.  D.  Smith, 
C47, 

'  Ellis  V.  Kimball,  10  Pick.  132. 

*  raitersou  v.  Wilkinson,  55  Me. 
42;  OJ  Am.  Dec.  568. 

"Huut  V.  B'   uett,  19  N.  Y.  173. 


'  Purdy  V.  Carpenter,  6  How.  Pr. 
361. 

"  Andrew  v,  Doshler,  43  N.  J.  L. 
16. 

»  Thompson  v.  Barkley,  27  P-i.  St. 
263;  Miller  v.  Miller,  8  Johns.  74. 

'"Sparrow?'.  Maynard,  8  Jones,  195. 

>'  Eliun  IK  Badger,  23  111.  498. 

'2  Chandler  v.  Holloway,  4  Port.  17. 
Covira,  Stallings  v.  Newman,  '21!  Ala. 
300;  62  Am.  Dec.  723;  Teuuey  v. 
Clement,  10  N.  U.  62. 


8  1306 


SLANDER  AND   LIBEL. 


2372 


The  complaint  must  allege  tliat  the  slanderous  words 
■vrero  spoken,  uttered,  or  published  by  the  defendant,*  and 
in  the  presence  of  third  persons.''     But  it  is  not  necessary 
to  aver  in  the  declaration  the  name  of  the  person  to  whom, 
or  in  whose  presence,  they  were  spoken.'     The  time  of 
speaking  the  words  is  not  material.*     An  allegation  that 
the  defendant  published  concerning  the  plaintiff,  in  a 
newspaper,  etc.,  a  certain  article  containing  the  false  and 
defamatory  matter  following  (setting  out  the  article  in 
full)  is  sufficient,  without  alleging  that  each  part  of  the 
article  was  concerning  the  plaintiff."^     A  plaintiff  may,  in 
the  same  count,  charge  words  not  actionable  per  se  with 
words  actionable  in  themselves  in  aggravation  of  dam- 
ages." 

Evidence  of  special   damage   cannot  be  given  in  an 
action  of  slander,  unless  it  is  alleged  in  the  declaration.^ 
"It   is   necessary  that   the  declaration  should    set   forth 
precisely  in  what  way  such  special  damage  resulted  from 
the  words  relied  on.     It  is  not  sufficient  to  allege  gener- 
ally that  the  plaintiff  has  suffered  special  damages  or  that 
he  has  been  put  to  great  costs  and  expenses  thereby."* 
And  where  the  plaintiff  alleges  loss  of  custom  or  profits, 
or  the  like,  as  his  special  damage,  it  is  not  sufficient  to 
allege  this  generally,  but  the  particular  instances  and  the 
particular  persons  must  be  named.     Thus  it  was  liohl 
insufficient  where  the  plaintiff  alleged  that  by  reason  of 
the  slander  she  "lost  several  suitors."^     So  where  plaintiff 
alleged  that  the  defendant's  words  had  "  injured  her  in 


'Watts  V.  Morgan,  50  Ind.  318; 
Roberts  v.  Lovell,  38  Wis.  211. 

•^  Frank  v.  Kaminsky.  109  111.26. 
But  a  count  charging  that  the  defend- 
ant "published'  a  slanderous  charge 
concerning  the  plaintiff  is  sufficient, 
without  averring  specially  the  pres- 
ence of  others:  Burton  v.  Burton,  3 
G.  Greene,  316. 

3  Ware  v.  Cartledge,  24  Ala.  622; 
60  Am.  Dec.  489. 

*  Hosley  v.  Brooks,  20  III.  115;  71 
Aw.  Dec.  252. 


»  Carson  v.  Mills,  69  N.  O.  122. 

8Dioytv.  Tanner,  20  Wend.  ]<)0, 

'  Bostwick  V.  Nicholson,  Kirby,  (55; 
Bostwick  V.  Hawley,  Kirby,  'JilO; 
8hipman  v.  Burrows,  1  Hall,  oD'J; 
Harcourt  v.  Harrison,  1  Hall,  474; 
Dicken  v.  Shepherd,  22  Md.  39i);  Her- 
rick  r.  Lapham,  10  Johns.  281;  liasaoU 
V.  Elmore,  48  N.  Y.  561. 

»  Cook  V.  Cook,  100  Mass.  194. 

»  Barnes  v.  Prudlin,  1  Sid.  376. 


2373 


DAMAGES — EVIDENCB — PLEADING. 


§  1306 


her  good  name,  and  caused  her  relatives  and  friends  to 
slight  and  shun  her."*  So  where  the  allegation  was 
merely  that  by  reason  of  defendant's  words  "  the  plain- 
tiff had  been  slighted,  neglected,  and  misused  by  the 
neighbors  and  her  former  associates,  and  turned  out  of 
doors." '^  But  where  words  are  spoken  of  the  plaintiff  in 
the  way  of  his  profession  or  trade  so  as  to  be  actionable 
per  se,  the  plaintifif  may  allege  and  prove  a  general  dimi- 
nution of  profits  or  decline  of  trade,  without  naming 
particular  customers  or  proving  they  have  ceased  to  deal 
with  him.' 

Under  the  general  issue,  the  truth  of  the  words  cannot 
bo  given  in  evidence  in  mitigation.  It  should  be  pleaded 
ill  bar.*  But  anything  short  of  a  justification  he  may 
thus  prove.^  A  mere  statement  that  the  words  are  true  is 
insufficient  under  the  code  system  as  a  justification;  it 
should  state  the  facts  which  go  to  constitute  the  crime  or 
offense  imputed,  so  that  an  issue  of  either  law  or  fact 
may  bo  framed.**  The  general  issue  is  abolished  under 
the  code  system  of  pleading,  and  a  defendant  cannot 
under  a  denial  show  that  alleged  slanderous  words  were 
not  maliciously  spoken  or  did  not  amount  to  slander;  but 
in  such  case  he  must  state  the  circumstances  under  which 


» Bassell   v.  Elmore,  48  N.  Y.  663j 

05  Barb.  G27. 

-  I'cttibone  v.  Simpson,  6G  Barb. 
492. 

^  Trenton  etc.  Ins.  Co.  v.  Perrine, 
23  N.  J.  L.  402;  57  Am.  Dec.  400; 
Woiss  V.  Whittemore,  28  Mich.  3C6: 
Evans  v.  Harris,  1  Hurl.  &.  N.  251; 
Asliley  V.  Harrison,  I  Esp.  48;  Pcake, 
2,")();  Ingram  v.  Lawson,  6  Bing.  N.  0. 
212;  8  Scott,  471;  4  Jur.  151;   9  Car. 

6  P.  320;  Harrison  v.  Pearce,  1  Foat. 
&  F.  509;  Broad  v.  Deuster,  8  Biss. 
2(3");  Evans  v.  Harries,  20  L.  J.  Ex.  32, 
Martin,  B.,  saying:  "Suppose  a  bis- 
cuit-baker in  Regent  Street  is  slan- 
(lerud  by  a  man  saying  his  biscuits 
arc  poisoned,  and  in  consequence  no 
one  enters  his  shop.  He  cannot  com- 
plain of  the   loss  of   any  particular 


customers,  for  he  does  not  know  them; 
and  how  hard  and  unjust  it  would  be 
if  he  could  not  prove  the  fact  of  the 
loss  under  a  general  allegation  of  loss 
of  custom." 

♦  Bailey  v.  Hyde,  3  Conn.  4G3;  8 
Am,  Dec.  202;  Swift  v.  Dickerman,  31 
Conn.  291;  Treats.  Browning,  4  Conn. 
408;  10  Am.  Dec.  156.  The  general 
issue  admits  plaintiff's  innocence  of 
the  charge:  Sheahan  v.  CoUiu.s,  20 
m.  325;  71  Am.  Dec.  271. 

*  Id. ;  and  Wormouth  v.  Cramer, 
3  Wend.  395;  20  Am.  Dec.  700;  Gil- 
man  V.  Lowell,  8  Wend.  573;  2t  Am. 
Dec.  96;  Hart  v.  Reed,  1 B.  Mon.  106; 
35  Am.  Dec.  179. 

«  Attebcrry  v.  Powell,  29  Mo.  429; 
77  Am.  Dec.  579. 


81306 


SLANDER  AND  LIBEL 


2374 


they  were  spoken,  in  order  to  show  absence  of  malice.' 
It  has  been  held  in  Massachusetts  that  a  plea  of  justifica- 
tion is  admissible  to  prove  the  speaking  of  the  words, 
though  the  plea  has  been  adjudged  bad  on  demurrer,  and 
the  defendant  has  also  pleaded  the  general  issue.''  But 
this  rule  is  disapproved  elsewhere.'  A  plea  of  justifica- 
tion to  an  action  of  slander  need  not  allege  the  truth  of 
the  exact  words  charged.*  The  two  defenses  that  defend- 
ant did  not  use  the  language,  and  tliat  such  language  is 
true,  are  not  inconsistent.*  A  defendant  in  slander  may 
both  deny  and  justify  the  words  charged.  And  he  can- 
not be  compelled  to  elect  between  the  two  defenses."  But 
it  is  otherwise  where  the  statute  requires  the  pleadings  to 
be  verified.^ 

Illustrations.  —  A  declaration  averred  that  in  consequence 
of  defendant's  testimony  that  plaintiff's  character  for  truthful- 
ness was  bad,  the  plaintiff  had  been  compelled  to  pay  a  large 
sum  in  costs,  but  which  did  not  show  how  he  had  been  com- 
pelled. Held,  insufficient:  Cook  v.  Cook,  100  Mass.  194.  In 
an  action  for  libel  charging  that  the  plaintiff's  opera-house  Wiig 
an  unfit  resort  for  respectable  people,  and  that  it  was  frequented 
by  disreputable  and  immoral  persons,  the  defendant  justified 
in  his  answer  by  reiterating  such  statement,  without  designat- 
ing the  persons  referred  to.  Held,  that  the  answer  was  not 
demurrable:  Maretzek  v.  Cauldwell,  2  Robt.  715.  A  charitaljle 
corporation  brought  an  action  for  libel,  and  alleged  that  ])y 
reason  of  the  libel  persons  had  refused  to  make  donations  to 
it.  Held,  that  a  bill  of  particulars  stating  the  names  of  such 
persons  was  properly  ordered:  New  York  Infant  Asylum  v. 
Roosevelt,  35  Hun,  501. 


^  Atteberry  v.  Powell,  29  Mo.  429; 
77  Am.  Dec.  579. 

*  Alderman  v.  French,  1  Pick.  1;  11 
Am.  Dec.  114;  Hix  v.  Drury,  5  Pick. 
29G.  This  rule  was  abolished  after- 
wards by  statute  in  that  state:  See 
Whitaker  v.  Freeman,  1  Dev.  270;  and 
aee  Butler  v.  Kaulback,  8  Kan.  G68; 
Miller  w.  Larsen,  17  Wis.  624;  Sexton  v. 
Rliames,  13  Wis.  99;  Hartwell  v.  Page, 
UVVis.  49. 

*  Whitaker  v.  Freeman,  1  Dev.  270; 
Dorr  V.  Jones,  5  How.  158;  Pope  v. 
Welsh,  IS  Ala.  631;  Starkweather  v. 


Kettle,  17  Wend.  20;  Homer  v.  Frank- 
lin, 7  Cow.  507;  Kimball  v.  Bellows,  13 
N.  H.  58;  Nye  v.  Spencer,  41  Mc;.  272; 
Farnam  v.  Childs,  66  111.  544;  Uridias 
V.  Morrell,  33  Cal.  92;  Mudd  v. 
Thompson,  34  Cal.  39;  Mclntyre  v. 
Randolph,  50  N.  H.  94;  Weston  v. 
Tumley,  33  Iowa,  486;  Wheeler  v. 
Robb,  1  Blackf.  330;  12  Am.  Dec.  245. 

♦  Coe  V.  Griggs,  76  Mo.  619. 

»  Cole  V.  Woodson,  32  Kan.  272 

"  Horton  v.  Banner,  6  Bush,  596. 

T  Atteberry  v.  Powell,  29  Mo.  429; 
77  Am.  Dec.  679. 


2375 


DAMAGES  —  EVIDENCE — PLEADING. 


§1307 


§  1307.  Who  may  Sue.— Damage  which  has  rosnlted 
to  A  in  consequence  of  the  defendant's  liaving  defamed 
B  is  too  remote  to  constitute  special  damage  in  any 
action  brought  by  B.  Whether  A,  who  has  himself  suf- 
fered the  damage,  can  sue  depends  upon  the  closeness  of 
the  relationship  between  A  and  B.  If  A  is  B's  master,  A 
may  have  an  action  on  the  case  per  quod  scrvitmm  amisit. 
If  A  is  B's  husband,  then  the  husband  may  sue  for  any 
special  damage  which  has  accrued  to  him  through  the 
defamation  of  his  wife.  But  a  wife  cannot  recover  for 
any  special  damage  which  words  spoken  of  her  have 
reflected  on  her  husband.*  Several  persons  injured  by 
the  same  libel  must  sue  alone.''  Partners  may  sue  jointly 
for  a  libel  defamatory  of  the  partnership.*  And  for  a 
publication  concerning  a  partnership  which  is  libelous 
2jer  se,  one  partner  may  sue  alone  for  the  injury  sustained 
by  him.*  But  where  one  partner  is  libeled  he  cannot 
recover  for  any  special  damage  which  has  occurred  to  the 
firm;^  nor  if  the  firm  is  libeled  the  partners  cannot 
jointly  recover  for  any  private  injury  to  a  single  partner.* 
But  if  insolvency  be  imputed  to  one  member  of  a  firm, 
this  is  a  reflection  on  the  credit  of  the  firm  as  well,  there- 
fore, either  he  or  the  firm,  or  both,  may  sue,  each  for  their 
own  damages.^  A  company  or  corporation  can  sue  even 
one  of  its  own  members  for  a  libel  relating  to  its  man- 
agement of  its  business.*     It  may  maintain  an  action 


'  Odgers  on  Libel  and  Slander,  324; 
citing  Harwood  v.  Hardwick,  2  Keb. 
387 

^Robinett  v.  McDonald,  65  Cal. 
Cll. 

'  Le  Fanu  v.  Malcolmson,  1  H.  L. 
Cas.  G37;  8  I.  L.  R,  418;  Haythorn 
V.  Lawson,  3  Car.  &  P.  196;  Ward  v. 
Siiiilh,  6  Bing.  749;  Ludwig  v.  Cra- 
mer, 53  Wis.  193. 

*  Kosenwald  v.  Hammerstein,  12 
Daly,  377. 

■>  Sdloraons  u.  Medex,  1  Stark.  691; 
Bobinson  v.  Marchant,  7  Q.  B.  918. 

"  Haythorn  v.  Lawson,  3  Car.  &  P. 


196;  Lo  Fanu  v.  Malcolmson,  1  H.  L. 
Cas.  637. 

'  Harrison  v.  Bevington,  8  Car.  & 
P.  70S;  Forster  v.  Lawson,  3  Bing. 
452;  11  Moore,  .360.  Whore  a  firm  is 
injured  by  the  speaking  of  slanderous 
words  against  one  of  its  meniljers,  it 
is  necessary  that  the  plaintiff 's  inter- 
est should  bo  specially  averred,  and 
special  damage  must  be  alleged:  Have- 
meyer  V.  Fuller,  GO  How.  Pr.  316. 

*  Williams  v.  Beaumont,  10  Bing. 
260;  3  Moore  &  S.  705;  Metropolitan 
Omnibus  Co.  v.  Hawkins,  4  Hurl,  & 
N.  87;  28  L.  J.  Ex.  201. 


1308 


SLANDER   AND   LIBEL. 


2370 


for  lihol  for  words  published  of  it  in  tho  way  of  its  trade  or 
business,  or  of  its  i)roporty  and  concerns,  or  of  its  oflicers, 
servants,  or  members,  by  reason  of  which  special  damage 
is  sustained  by  the  corporation.'  A  corporation  **  could 
not  sue  in  respect  of  an  imputation  of  murder,  or  incest, 
or  adultery,  because  it  could  not  commit  thosr  crimes. 
Nor  could  it  sue  in  respect  of  a  charge  of  corruption;  for 
a  corporation  cannot  be  guilty  of  corruption,  although 
the  individuals  composing  it  may  be."''  And  it  has  been 
doubted  whether  the  comity  by  which  a  foreign  corpora- 
tion is  permitted  to  bring  suit  upon  its  contracts  should 
be  so  tar  extended  as  to  permit  a  suit  for  libel.^  A  mar- 
ried woman  may  sue  for  a  libel  or  slander  against  herself* 
Under  a  statute  securing  to  married  women  the  onjoj'- 
ment  of  their  separate  property  as  if  sole,  and  enabling 
them  to  sue  in  relation  thereto,  an  action  of  slander  for 
words  spoken  against  the  wife  before  her  marriage  must 
be  brought  in  tho  names  of  both  husband  and  yrife,' 
The  action  will  not  abate  by  the  death  of  tho  defendant 
after  judgment  and  pending  an  appeal.  But  should  the 
case  be  reversed  on  appeal,  the  action  would  abate." 

§  1308.  Law  and  Pact. — Libel  or  no  libel  in  the 
particular  case  is  a  mixed  question  of  law  and  fact.'  As 
to  what  is  the  meaning  of  tho  words,  what  was  their 
application,  in  what  sense  were  they  used  by  the  defendant 
and  understood  by  the  hearers,  and  to  whom  were  they 


'  Trenton  etc.  Insurance  Co.  v  Per- 
rine,  23  N.  J.  L.  402;  57  Am.  Dec.  400. 

^  Per  Pollock,  C.  B.,  in  Metropol- 
itan Omnibus  Co.  v.  Hawkins,  4 
Hurl.  &  N.  90. 

"  Hahuemannian  Life  Insurance  Co. 
V.  Bcebe,  48  III.  87;  95  Am.  Dec.  519. 

*  See  ante.  Title  IV.,  Husband  and 
Wife.  Whether  or  not  a  wife  can 
bring  libel  against  her  husband,  it  is 
no  defense  to  one  who  has  maliciously 
publislied  and  paid  for  an  advertise- 
ment defaming  his  daughter-in-law 
that  tlie  advertisement  was  written  by 
plaintiff's  husband,  who  requested  his 


father  to  publish  it:  Smith  v.  Smith, 
Mich.  1889. 

»  Gibson  v.  Gibson,  43  Wis.  23;  28 
Am.  Rep.  527. 

*  Akers  v.  Akers,  84  Tenn.  7. 

7  Goodrich  v.  Woolcott,  3  Cow.  231; 
Cook  V.  Bostwick,  12  Wend.  48;  Laiue 
V.  Wells,  7  Wend.  175;  McKinlcy  v. 
Rit,  20  Johns.  355;  Welsli  v.  Eikle, 
7  J.  J.  Marsh.  424;  Jones  v.  Rivers,  3 
Brev.  95.  When  the  language  chaiged 
to  be  libelous  is  unambiguous,  the 
question  of  libel  or  no  libel  is  for  tlie 
court:  Donaghue  v.  Gaffy,  54  Cona. 
257. 


23TG 


2377 


DAMAGES  —  EVIDENCE  —  PLEADING. 


§  1308 


t3  trade  or 
ts  officors, 
ul  (lauuige 
an  "  could 

or  incest, 
sr    crimes, 
jption;  for 
,,  although 
it  has  been 
rn  corpora- 
acts  should 
1.3     A  raar- 
nst  herself/ 

tho  en  joy- 
id  enabling 
•  slander  for 
irriage  must 
i  and  yife.' 
10  defendant 
,t  should  the 
abate." 

libel  in  the 
id  fact.'  As 
it  was  their 
he  defendant 
XL  were  they 

Smith  V.  Smith, 

,  43  Wis.  23;  28 

\4:  Tenn.  7. 

cott,  3  Cow.  231; 

Weml.  48;  Lamo 

75;   McKinkV*'. 

Welsh  ■('.  K.ikle, 

.ones  V.  Kivcrs,  3 

language  charged 

nambiguous,  the 

o  libel  is  for  the 

Gaffy,  54  Coua. 


intended  to  refer,  these  are  questions  of  fact  to  bo  decided 
by  tljc  jury.'  So  tho  question  of  malice  is  lor  the  jury;'' 
or  whether  or  not  tho  words  were  spoken  of  the  plaintifif 
in  the  way  of  his  business;'  or  whether  the  publication  is 
a  true  and  correct  narrative  of  quasi  judicial  proceedings 
before  a  public  body  which  may  lawfully  be  published.* 
Whett  words  charged  are  susceptible  of  twofold  meaning, 
one  imputing  a  felony,  and  the  other  a  trespass  only,  it  is 
the  province  of  the  jury  to  determine  from  tho  circum- 
stances in  what  sense  they  were  uttered  and  understood.* 
Whether  tho  act  charged  amounts  to  a  crime,  or  whether 


'  Dolloway  v.  Turrill,  2G  Weml.  393; 
Miller  v.  Maxwell,  10  Weud.  15;  Lewis 
V.  Lliapiiiiin,  IG  N.  Y.  371;  V^un  Vceh- 
ti'ii  V.  Hopkins,  5  Johns.  211;  4  Am. 
Duo.  ;}:W;  Hniarb  v.  Blancharil,  42  N. 
H.  140;  Dexter  v.  Tabcr,  12  Johns. 
2;W;  LJsher  v.  Severance,  20  Me.  9;  37 
Am.  Dec.  33;  St.  Martin  v.  Dcsnoyer, 
1  Miim.  150;  01  Am.  Dec.  494;  Welsh 
I'.  Ealdo,  7  J.  J.  Marsh.  424;  Dumell 
V.  Fi.-ike,  11  Met.  551;  Smith  v.  Miles, 
Ij  Vt.  215;  Jones  v.  liivers,  3  Brcv. 
9.');  Thompson  v.  Grimes,  5  Iiul.  385; 
Ci'ugier  /'.  Bunton,  2  Rich.  395;  Haw- 
kins v.  N.  Y.  Printing  Co.,  29  La.  Ann. 
134;  Eilwards  v.  Chandler,  14  Mich. 
471;  90  Am.  Dec.  5U9.  When  the 
laiiguagu  charged  to  be  libelous  is  sus- 
ceptible oi;  different  constructions,  it  is 
a  qm  stiou  for  tho  jury  whether  or  not 
it  is  libelous;  Thompson  v.  Powning, 
IJXrv.  195. 

''  Biiiiton  V.  Worley,  4  Bibb,  38;  7 
Am.  Dec.  735;  Jarvis  v,  Hatheway,  3 
Johns.  ISO;  3  Am.  Dec.  473;  Bodwell 
V.  Osiiood,  3  Pick.  379;  15  Am.  Dec. 
228;  Trabuo  v.  Mays,  3  Dana,  138;  28 
Am.  Doc.  01;  Lancey  v.  Bryant,  30 
Ml'.  4ti0.  Whether  or  not  the  publi- 
oatioii  complained  of  is  libelous  is  to 
be  (ktermined  by  the  jury:  Beazloy 
v.  Roil,  OS  Ga.  380;  Woodling  v. 
Knickerbocker,  31  Minn.  208.  It  is 
only  when  tho  court  can  say  that  the 
publication  is  not  reasonably  capable 
of  any  defamatory  meaning,  and  can- 
not reasonably  bo  understood  in  any 
defamatory  sense,  that  it  can  rule  as 
a  niattLT  of  law  that  the  publication 
is  not  libelous,  and  withdraw  the  case 
torn  the  jury  or  order  a  verdict  for 


the  defendant:  Twombly  v.  Monroe, 
130  Mass.  464.  In  California  it  is  held 
that  it  is  for  the  court  to  determine 
whether  or  not  the  language  will  bear 
a  double  meaning,  one  of  which  is 
libelous;  and  when  it  has  determined 
that  it  will  bear  such  meaning,  it  is 
for  tho  jury  to  determine  in  which 
it  was  used:  Van  V^actor  v.  Walkup, 
46  Cal.  124.  In  lilul  the  meaning  of 
the  words  used  is  part  of  the  inten- 
tion, and  is  therefore  to  be  found  by 
tho  jury:  Morrell  ?•.  Frith,  3  Mees.  & 
W.  402.  In  England  it  is  held  that  the 
question  whether  or  not  a  publication 
is  capable  of  a  defamatory  meaning  is 
a  question  of  law  for  the  court,  and  if 
it  finds  that  it  is  not,  it  should  with- 
draw the  case  from  the  jury:  Mulligan 
V.  Cole,  L.  R.  10  Q.  B.  549;  Hunt  v. 
Goodlake,  43  L.  J.  Com.  P.,  N.  S., 
54;  Capital  and  Counties  Bank  n. 
Henty,  L.  R.  7  App.  Cas.  741.  But 
where  the  publication  is  reasonably 
susceptible  of  a  construction  that 
would  make  it  libelous,  its  meaning 
ought  to  bo  submitted  to  the  jury: 
Hart  V.  Wall,  L.  II.  2  Com.  P.  Div. 
146.  In  Maryland,  however,  it  is 
settled  that  in  a  civil  action  tho  ques- 
tion whether  a  publication  is  libelous 
or  not  is  a  question  of  law  for  the 
court:  Negley  ?j.  Farpow,  GO  Md.  158; 
45  Am.  Rep.  715. 

'  Ramsdale  v.  Greenacre,  1  Fost.  & 
F.  01. 

*  Barrows  v.  Bell,  7  Gray,  301;  66 
Am.  Dec.  479. 

*  Dedway  v.  Powell,  4  Bush,  77;  96 
Am.  Dec.  283. 


S1308 


SLANDBB  AND  LIBEL. 


2378 


the  words  are  or  are  not  libelous  and  actionnblo,  is  a 
question  of  law  for  the  court.'  Whether  it  is  a  privilojrod 
communication  is  for  the  court.'  The  jury  cannot  dooi<lo 
whether  a  libel  was  published  on  a  justifiable  occasion, 
without  being  told  by  the  court  what  facts  would  consli- 
tute  such  an  occasion.'  It  is  not  error  to  charge  the  jury 
that  there  is  no  evidence  of  express  malice,  nlthoiit,'h 
there  may  be  slight  evidence,  but  not  sufficient  to  sustain 
a  verdict.*  In  an  action  for  libel  it  is  not  impropdr  for 
the  court  to  inform  the  jury  of  the  "mount  of  damages 
which  would  carry  costs.' 


'  Dexter  v.  Tabcr,  12  Johns.  239; 
Hume  V.  Arrasmith,  1  Bibb,  165;  4 
Am.  Dec.  (520;  Brite  v.  Gill,  2  T.  B. 
Mon.  65;  15  Am.  Dec.  122;  Rico  v. 
Simmons,  2  Harr.  (Del.)  417;  31  Am, 
Dec.  766;  Snyder  v.  Andrews,  6  Barb. 
43;  Pittock  V.  O'Neill,  63  Pa.  St.  253; 
3  Am.  Rep.  544;  Barrows  v.  Bell,  7 
Gray,  301;  66  Am.  Dec.  479;  Nogley 
V.  Farpow,  60  Md.  158;  45  Am.  Rep, 


715;  Boarreseau  v,  Detroit  etc.  Co,,  03 
Mich.  425;  6  Am.  St.  Rep.  3'_'0. 

■•'  Jellison  v.  Goodwin,  43  Mo.  287; 
69  Am,  Deo,  62;  Byam  v.  Cnllms,  1H 
N,  Y,  143;  7  Am.  St,  Rep.  TJii. 

'  Duncan  v.  Brown,  15  U,  Mon. 
186, 

♦Remington  v.  Cougdon,  2  ]*ick, 
310;  13  Am,  Doc.  431, 

'  Steketee  v.  Kimm,  48  Miuh,  ',^. 


2378 

tionftblo,  is  a 

9  a  privilofrod 
cannot  dooi<lo 
iblo  occasion, 
woulvl  consli- 
largo  the  jury 
ice,  iiltlioui^h 
ent  to  sustain 
impro[)(U'  for 
it  of  damages 


Detroit  etc.  Co.,G3 
St.  Rep.  :W(). 
dwin,  43   Mii.  '287; 
lyam  v.  Collins,  111 
St.  Rep.  7-2t). 
own,    15   li.    Mon. 

Cougilon,  2  Pick. 
431. 
aun,  48  Mich.  3il2. 


DIVISION  III. 

PROPERTY  BIGHTS  AND  EEMEDIES. 


TITLE  XVI. 

PERSONAL  PROPERTY  IN  GENERAL. 


TITLE  XVI. 

PEESONAL  PEOPERTY  IN  GENEEAL. 


§  1309. 

§  1310. 

§1311. 

§  1312. 

§  1313. 

§  1314. 

§1315. 

§  1316. 

§  1317. 

§  1318. 

§  1319. 

§  1320. 

§  1321. 

§  1322. 
§  1323. 
§  1324. 
§  1325. 
§  1326. 
§  1327. 
§  1328. 
§  1329. 
§  1330. 
§  1331. 
§  1332. 
§  1333. 
§1334. 
§  1335. 
§  1336. 
§  1337. 
§1338. 


CHAPTER  LXIX. 

TITLE   TO   PERSONAL   PROPERTY. 

Title  by  original  occupancy. 

Abandoned  and  derelict  property. 

Waifs  and  treasure-trove. 

Wrecks  and  abandoned  vessels. 

Lost  property  —  Rights  and  liabilities  of  finders  of  chattels. 

What  is  and  what  is  not  "  lost  property." 

Title  by  accession. 

Where  defendant  is  a  trespasser. 

Where  defendant  is  not  a  wrong-doer. 

Title  by  confusion  of  property. 

By  misconduct  of  party. 

By  consent  of  the  parties. 

By  mistake  of  party. 

By  act  of  stranger. 

By  inevitable  accident  or  ris  major. 

Title  by  gift— Gifts  defined. 

Gift  inter  vivos  —  What  may  be  the  subject  of. 

Subject-matter  and  donee  must  be  definite. 

Unexecuted  gift  —  Promise  to  make  gift  —Revocation. 

Gift  on  condition. 

Delivery  essential  to  gift  —What  is  and  is  not  a  delivery. 

Acceptance,  how  far  essential. 

Executed  gift  is  irrevocable  —  Extent  and  effect  of. 

Gift  causa  wior^w- Must  be  made  in  expectation  of  death. 

Absolute  only  on  death  of  donor. 

What  property  may  be  the  subject  of. 

Delivery  of  property  essential  —  What  is  and  is  not  a  valid  delivery. 

Acceptance  essential. 

Other  requisites,  and  effect  of. 

Other  methods  of  obtaining  title  to  chattels. 


§§  1309,  1310      PERSONAL  PROPERTY   IN  GENERAL.         2384 


§  1309.  Title  by  Original  Occupancy.  —  Title  to  chat, 
tels  by  occupancy  arises  where  one  takes  possession  o\ 
such  articles  of  personal  property  as  have  not  been  pre- 
viously appropriated  by  any  one.  The  common  law  has 
not  occupied  i  I  self  much  with  this  kind  of  title  to  person- 
alty. The  code  of  Louisiana  provides:  "  There  are  five 
ways  of  acquiring  property  by  occupancy,  viz.,  by  liunt- 
ing,  by  fowling,  by  fishing,  by  finding,  by  captures  from 
the  enemy.  Wild  beasts,  birds,  and  all  the  animals  which 
are  bred  in  the  sea,  tho  air,  or  upon  the  earth,  do,  as  soon 
as  they  are  taken,  become  instantly  the  property  of  the 

captor And  it  is  not  material  whether  they  are 

taken  by  a  man  upon  his  own  ground  or  upon  the  ground 
of  another.  But  the  proprietor  of  a  tract  of  land  may 
forbid  any  person  from  entering  for  the  purpose  of  hunt- 
ing   thereon Those    who    discover   or  who  find 

precious  stones,  pearls,  and  other  things  of  that  kind  on 
the  sea-shore  or  other  places  where  it  is  lawful  to  search 
for  and  take  them  become  masters  of  them."*  And  this 
is  likewise  tho  common  law  of  the  subject. 

§  1310.  Abandoned  and  Derelict  Property.  ^ — Where 
an  owner  of  property  throws  it  away  with  the  intention 
of  abandoning  it,  the  person  who  first  takes  possession 
of  it  obtains  a  complete  title.'^  But  abandonment  happens 
as  a  rule  only  in  those  cases  where  the  thing  is  of  little 
or  no  value  to  the  owner;  as,  for  example,  old  clothing, 
boxes,  junk  of  all  kinds,  ashes,  slops,  and  refuse  which 
are  cast  a«ido  by  the  owner  as  worthless.  In  a  Connecti- 
cut case,  the  horses  of  a  number  of  persons  on  the 
highway  had  dropped  a  quantity  of  manure  which  the 
plaintiff  afterwards  gathered  into  heaps  to  remove  to  his 

'Code    Louisiana,    sees.    3412    et  Juniata  Bridge  Co.,  16  Pa.  St.  .303,  55 

seq.  Am.   Dec.   50G,  Gibson,    C.  J.,  says: 

''  Wyman  v.  Hurlbnrt,  12  Ohio,  81;  "In  the  Doctor  and  Student  it  is  said 

40  Am.  Dec.  40 1 ;     see    note  to  this  that  a   man  who  has  abandonuil  hia 

case,  40  Am.  Dec.  41)4-468;   McGoon  property  may  at  any  time  resume  tlie 

».  Ankeay,  11  111.  558.     InForsterv.  ownership  of  it. " 


■^^ 


yL. 


23S4 


20S5 


TITLE   TO   PETISONAL   PROPERTY. 


1310 


tie  to  chat* 
ssession  ol 
;  been  pre- 
on  law  lias 
3  to  person- 
ere  are  live 
s.,  by  hnnt- 
ptures  from 
imals  wliicli 
,  do,  as  soon 
perty  of  the 
er  they  are 
1  the  ground 
of  land  may 
•ose  of  hunt- 
or  who  find 
that  kind  on 
:ul  to  search 
'*    And  this 

—  Where 
\,h&  intention 
;s  possession 
lent  happens 
ig  is  of  little 
[old  clothing, 
Jrefuse  which 
a  Connecti- 
rsons    on  the 
[re  which  the 
lemove  to  his 

ll6Pa.  St.  303,  55 

Ison,   C.  J.,  >*ay.a: 
fStudent  it  n  said 
s  abamioneil  his 
■  time  resume  the 


land.  Before  ho  removed  it  the  defendant  took  it  away. 
Tlic  court  held  that  the  manure  was  originally  the  prop- 
erly of  tlio  owners  of  the  animals  which  dropped  it;  that 
it  liad  been  abandoned  by  them  as  worthless,  and  that  tho 
plaintiff  by  first  taking  possession  of  it  became  tho  owner, 
and  could  maintain  trovt-r  against  the  defendant.*  Soil 
removed  from  the  land  of  one  person,  and  placed  on  the 
land  of  another  with  his  consent,  and  without  an  inten- 
tion on  the  part  of  the  former  to  reclaim  it,  or  any  agree- 
ment authorizing  him  to  remove  it,  becomes  a  part  of  tho 
land  of  the  latter.'^  The  owner  of  land  is  not  the  owner 
of  timber  floating  in  a  stream  running  over  his  land,  yet 
lie  has  an  exclusive  right  to  seize  such  Avood.^  And  the 
transmission  of  financial  news  to  subscribers  by  means  of 
telegraphic  printing  instruments  is  only  a  qualified  pub- 
lication of  such  news,  and  does  not  forfeit  the  owner's 
right  of  property  therein;^  and  property  cannot  be  held 
to  be  derelict  in  the  hands  of  an  officer  into  whose  pos- 
session it  has  come  by  judicial  process.* 


'  Hasilcm  ?'.  Lockwood,  37  Conn.  500, 
9  Am.  ll;;p.  350,  the  conrt  saying: 
"We  do  not  question  tho  general 
doetriuu  that  where  the  right  by  oc- 
cupiincy  exists,  it  exists  no  longer  tlian 
the  ii;u  ty  retains  the  actual  possession 
of  the  }iro[)urty,  or  till  he  appropriates 
it  to  hi  i  own  use  by  removing  it  to 
some  other  place.  If  he  leaves  the 
pr(i[iorty  at  the  place  where  it  wasJia- 
covereil,  and  does  nothing  whatsoever 
to  enhance  its  value  or  change  its 
nature,  liis  right  by  occupancy  is  un- 
questionably gone.  But  the  question 
is,  if  a  party  finds  property  compara- 
tively worthless,  as  the  plaintiff  found 
tho  property  in  question  owing  to  its 
scatti'ieil  condition  upon  the  highway, 
and ;4reatly  increases  its  value  liy  his 
Uhnr  ;ui(l  expense,  does  he  lose  his 
right  if  ho  loaves  it  a  reasonable  time 
to  piMjeiiro  the  means  to  take  it  away, 
when  such  Tneans  are  necessary  for  its 
reiiioval  ?  Suppose  a  teamster  v/ith  a 
load  of  grain,  while  traveling  the  high- 
way, discovers  a  rent  in  one  of  his  bags, 
and  iiuAs  that  his  grain  is  scattered 
150 


upon  the  road  for  tho  distance  of  a 
mile.  He  considers  the  labor  of  col- 
lecting his  corn  of  more  value  than 
the  property  itself,  and  he  therefore 
abandons  it  and  pursues  his  way.  A 
afterwards  finds  the  grain  in  this  con- 
dition, and  gathers  it  kernel  by  kernel 
into  heaps  by  tho  side  of  the  road,  and 
leaves  it  a  reasonable  time  to  procure 
tlie  means  necessary  for  its  removal. 
While  he  is  gone  for  his  bag,  B  dis- 
covers the  grain  thus  conveniently 
collected  in  heaps,  and  appropriates  ifc 
to  his  own  use.  Has  A  any  remedy? 
If  he  has  not,  the  law  in  this  instance 
is  open  to  just  reproach.  We  think, 
under  such  circumstances,  A  would 
have  a  reasonable  time  to  remove  tho 
property,  and  during  such  reasonable 
time  his  right  to  it  would  be  pro- 
tected." 

*  Lacustrine  Fertilizer  Co.   v.  Lake 
Guano  etc.  Co.,  82  N.  Y.  476. 

3  Rogers  v.  Judd,  5  Vt.  223. 

*  Kiornan  v.  Manhattan  Quotation. 
Tel.  Co.,  50  How.  Pr.  194. 

*  Norton  v.  Nye,  56  Me.  211. 


§  1310      PERSONAL  PROPERTY  IN  GENERAL. 


2G86 


Further,  as  to  what  is  to  be  consideTed  a  takin^^  posses- 
sion  by  the  first  corner,  to  the  exclusion  of  others:  Tlio 
law  requires  an  actual  taking  of  the  property  with  an 
intention  of  reducing  it  into  possession.  The  possession, 
it  has  been  said,  need  not  be  an  absolute  or  perpetual  ap- 
propriation of  the  property  to  the  use  of  the  finder,  nor 
need  the  act  of  taking  possession  be  manual.^  But  it  has 
been  held  that  marking  trees  that  extend  across  a  wreck, 
or  affixing  temporary  buoys  to  it,  are  not  such  acts  as 
the  law  will  protect  as  appropriating  the  property ;  ^  nor 
marking  the  position  of  a  wreck  and  preparing  a  ma- 
chine to  ra;'  '  r;*  nor  merely  chasing  a  wild  animal;^ 
nor  marki   ^  ee  in  the  woods  in  which  there   were 

bees;^  nor  even  getting  the  permission  of  the  owner  of 
the  tree  to  i  xo  thei  r*     In  order  that  the  title  to  a  per- 
sonal  chattel  shall  pas'}  by  operation  of  the  statute  of 
limitations,  there  must    at  least  be  some  use  or  appro- 
priation of  it,  or  some  act  of  dominion  over  it  inconsist- 
ent with  an  absolute  right  of  property  in  the  owner,  and 
such  as  would  lay  the  foundation  of  an  action  for  its 
recovery.''     One  who  cuts  and  stacks  hay  on  uninclosed 
prairie  owned  by  others,  without  authority,  acquires  no 
property  in  such  hay,  and  cannot  maintain  an  action  for 
its  destruction.®     The  ownership  of  split  stone  lying  upon 
land  taken  for  a  highway  is  not  affected  by  the  location; 
and  the  officers  of  the  town  have  no  right  to  use  such 
stone  in  constructing  the  highway." 

Where  one  man's  property  is  cast  on  another  man's 
land,  as,  for  example,  where  fruit  is  blown  or  falls  from 
his  trees,  or  logs  or  other  property  is  carried  by  a  flood, 

'  Eads  V.  Brazelton,  22  Ark.  499;  79        *  Gillett  v.  Mason,  7  Johns.  17. 
Am.  Dec.  88.  «  Ferguson  v.  Miller,  1  Cow.  244;  13 

■^  Eada  v.  Brazelton,  22  Ark.  499;  79  Am.  Dec.  519. 
Am.  Dec.  88.  '  Baker  v.  Chase,  55  N.  H.  01. 

'TheWurts,  Olcott,  469.  «  Murphy  v.  R.   R.  Co.,  55  Iowa, 

•  Pierson  v.  Post,  3  Gaines,  175;  2  473;  39  Am.  Rep.  175. 
Am.  Dec.  264;  Buster  v.  Newkirk,  20        »  Small  v.  Danville,  51  Mo.  359. 
Johns.  75. 


2386 


2387 


TITLE  TO  PERSONAL  PROPERTY. 


1310 


1,f  posscs- 
hers:  The 
y  with  an 
possession, 
rpctual  ap- 
fiuder,  nor 

But  it  has 
)ss  a  wreck, 
ach  acts  as 
,perty;^  nor 
iving  a  ma- 
ild  auinud/ 
^  there  were 
the  owner  of 
itle  to  a  per- 
he  statute  of 
ise  or  appro- 
r  it  incousist- 
he  owner,  and 
action  for  its 

,n  uninclosed 
,  acquires  no 
an  action  for 

ne  lying  ^^Po^ 

ly  the  location; 

r^t  to  use  sud 

another  man's 
^  or  falls  from 
ried  by  a  flood, 

L,  7  Johns-  17. 
[iUer,lCow.2«;13 

le  55N.  H.  Gl' 

f  R.  Co.,  55  lorn, 

liUe%lMc.359. 


and  he  is  guilty  of  no  negligence,  ho  may  abandon  the 
property  to  the  owner  of  such  land,  and  in  such  caso  be 
is  not  liable  for  any  damage  which  the  property  h*e 
caused.*  But  he  has  also  a  right  to  enter  and  reclaim  his 
property;  ^  but  if  he  does,  he  must  make  good  to  the  owner 
of  the  land  any  damage  which  he  may  have  sustained.* 
In  Pennsylvania  it  has  been  laid  down  that  in  tlie  case 
of  property  carried  away  by  a  flood,  and  stranded  on  an- 
other's land,  the  land-owner  has  a  right  after  notice  to 
disencumber  his  land  and  cast  the  property  back  into  the 
stream.*  Property  on  the  body  of  a  drowned  man  washed 
ashore  from  a  shipwreck  is  not  derelict,  but  goes  to  his  per- 
sonal representative.^ 

Where  derelict,  or  property  which  has  been  carried 
away  by  flood,  etc.,  is  saved,  the  rescuer  has  a  right  to  be 
paid  his  reasonable  costs  and  expenses  incurred  thereby.® 
But  he  has  no  lien  for  this.  He  must  deliver  up  the 
property  on  demand,  and  his  only  remedy  is  an  action 
against  the  owner.^  Within  the  admiralty  jurisdiction 
the  preserver  of  property  has  a  lien  on  it  for  his  services.^ 


>  Sheldon  v.  Sherman,  42  N.  Y.  484; 
1  Am.  Rep.  5G9. 

'^  Proctor  V.  Adams,  113  Mass.  377; 
18  Am.  ReiJ.  500;  Sheldon  v.  Sher- 
man, 42  N.  Y.  484;  1  Am.  Rep.  569; 
Gould  on  Waters,  102;  Carter  v. 
Thurston,  58  N.  H.  104;  42  Am. 
Kop.  584;  Hetfield  v.  Baum,  13 
Iru  1.  3i)4;  57  Am.  Dec.  5G3;  Brown  v. 
Chadlmurne,  31  Me.  9;  50  Am.  Dec. 
C-ll;  Treat  v.  Lord,  42  Me.  563;  66 
Am.  Dec.  298. 

^  Sheldon  V.  Sherman,  42  N.  Y.  484; 
1  Am.  Rep.  569;  Chase  v.  Corcoran, 
lOii  Mass.  286.  But  in  other  cases  it 
has  huuii  held  that  where  the  owner 
lias  not  been  guilty  of  negligence,  the 
lauil-owner  has  no  claim  for  injury  to 
his  [iroperty,  but  that  the  former  may 
enter  and  reclaim  it  without  paying 
compensation:  Forster  v.  Juniata 
Bri^l^a■  Co.,  16  Pa.  St.  393;  55  Am. 
Dee.  606;  Livezey  v.  Philadelphia,  64 
Pa.  .St.  106;  3  Am.  Rep.  578. 

*Forster  ■%  Juniata  Bridge  Co.,  16 


Pa.  St.  393;  55  Am.  Dec.  506;  Livezey 
?'.  Philadelphia,  64  Pa.  St.  lOI!;  3  Am, 
Rep.  578.  Doing  as  little  harm  to  it 
as  p()ssd)le:  Berry  «\  Carle,  3  Mo.  269. 

^  Wonson  V.  Say  ward,  13  Pick. 
402;  23  Am.  Dec.  691. 

''  ToiiiG  y.  Cribs  of  Lumber,  Taney, 
553;  Tome  ?-.  Dubois,  6  Wall.  548; 
Wiiislow  V.  Walker,  1  Hayw.  193; 
Reeder  r.  Anderson,  4  Daua.  193. 

'  Bulcer  /'.  lloag,  7  N.  Y.  555;  59  Am. 
Dec.  43);  Tome  v.  Cribs  of  Lumber, 
Tanev,  553;  Nicholson  i;.  Chapman,  2 
H.  Black.  254. 

s  Baker  v.  Hoag,  7  N.  Y.  555;  59  Am. 
Dec.  431.  In  Story  on  Bailments, 
sec.  622,  it  is  said:  "Whenever  upon 
the  liigh  seas,  or  on  the  sea-coast,  or 
elsewhere  within  the  admiralty  and 
maritime  jurisdiction  (wliich  is  ordi- 
narily limited  to  places  within  the  ebb 
and  tlow  of  the  title),  any  services 
are  rendered  by  persons  not  com- 
posing the  ship's  crew  to  .ships  in 
distress,  by  saving  them  or  their  car- 


§1311 


PERSONAL  PROPERTY  IN  GENERAL. 


23S8 


Illustrations. —  Logs  belonging  to  A,  secured  in  a  river 
which  WU8  a  public  way  for  iloating  logs,  were  washed  by  an 
unusual  freshet  onto  the  land  of  B,  where  A  suffered  them  to 
remain  for  nine  months,  when  he  reclaimed  them.  Held,  that 
A  was  not  liable  to  B  for  damages  caused  by  the  mere  lodgment 
of  the  logs  on  the  latter's  land,  but  was  so  for  suffering  them  to 
remain  there  beyond  a  reasonable  time:  Sheldon  v.  Skennnn, 
42  Barb.  3G8.  Plaintiff"  bought  a  piece  of  land  on  which  were 
lying  some  split  stones,  the  property  of  the  defendant.  For 
more  than  six  years  the  stones  were  not  moved  by  either  party, 
and  no  claim  of  ownership  in  them  was  asserted  by  either  to 
the  other.  ILdd,  that  the  title  to  the  stones  did  not  pass  to  the 
plaintiff' by  virtue  of  the  statute  of  limitations:  Baker  v.  CJutse, 
55  N.  II.  61.  The  owner  of  a  tannery  sold  it  and  accidentally 
omitted  to  remove  a  few  hides  from  the  vats.  Many  years 
afterward  a  laborer  found  them.  Held,  that  they  belonged  to 
the  original  owner  or  his  representatives:  Livcrmore  v.  White, 
74  Me.  452;  43  Am.  Rep.  600.  Plaintiff",  under  a  license  of  the 
owner  of  the  soil  to  search  for  tin  ore,  made  excavations  in  the 
soil.  Defendant  carted  away  some  of  the  soil,  plaintiff  not 
having  abandoned  his  right  to  search  the  soil  thrown  out  for 
ore.  Held,  that  plaintiff"  had,  as  against  defendant,  posses- 
sory title  to  the  mass  thrown  out:  Noriham  v.  Bowden,  11  Ex. 
70;  24  L.  J.  Ex.  237.  Various  quantities  of  tallow,  the  prop- 
erty of  diff"erent  persons,  were  deposited  in  warehouses  on  the 
bank  of  the  Thames.  A  fire  took  place,  in  consequence  of 
which  the  tallow  melted  and  flowed  down  into  the  sewers,  and 
thence  into  the  river,  from  whence  several  portions  of  it  were 
unwarrantably  taken  by  diff'erent  persons.  A,  one  of  those 
persons,  sold  some  of  it  to  B,  which  was  taken  from  him  by  the 
police,  and  sold,  under  statutory  authority,  by  them  to  C. 
Held,  that  A  had  no  property  in  the  tallow  entitling  him  to 
maintain  an  action  against  C  for  its  conversion:  Buckley  v. 
Gross,  3  Best  &  S.  566;  32  L.  J.  Q.  B.  129. 

§  1311.  Waifs  and  Treasure-trove.  —  Waifs  are 
stolen  goods  which  the  thief  in  fleeing  throws  away.     At 


goes  from  impending  perils  and  losses, 
or  by  recovering  them  after  they  have 
been  lost,  or  by  bringing  them  in  and 
preserving  them  when  found  derelict, 
in  order  to  have  them  restored  to  the 
rightful  owners,  such  persons  are 
denominated  salvors;  and  they  are 
entitled  to  a  compensation  for  their 
services,  which  is  known  by  the  name 
of  salvage.  Aa  soon  as  they  take  pos- 
session of  the  property  for  the  purpose 


of  preserving  it,  as,  for  example,  if 
they  find  a  ship  in  distress,  and  take 
possession  with  the  assent  of  the  mas- 
ter or  other  j)erson8  in  possession,  in 
all  such  cases  they  are  deemed  bona 
Jide  possessors,  and  their  posst'ssiou 
cannot  be  lawfully  displaced  by  any 
third  persons.  They  have  a  lien  ou 
the  property  saved  for  their  salvage 
which  the  laws  of  all  maritime  coun- 
tries will  respect  and  enforce." 


23S8 


2389 


TITLE  TO  PERSONAL  PROPERTY. 


§  1312 


in  a  river 
3hed  by  an 
ed  tbein  to 

Held,  thut 
e  lodguunit 
ing  thoin  to 
V.  Shcnnan, 
wliich  wero 
idant.  For 
•ither  party, 
by  eitber  to 
;  pass  to  the 
'cer  V.  Cliane, 
accidentally 
Many  years 

belonged  to 
ore  V.  White, 
icense  of  the 
atiouB  in  the 
plaintiff  not 
irown  out  for 
dant,  posses- 
wden,  11  Ex. 
3W,  the  prop- 
kouses  on  the 
isequence  of 
3  sewers,  and 
ms  of  it  were 
one  of  those 
m  him  by  the 

tbem  to  C. 

tling  bim  to 
Buckley  v. 


Waifs  are 
s  away.    At 

for  example,  if 
istress,  aiul  take 
3sent  of  the  mas- 
in  possession,  in 
ire  deemed  homt 

their   possussiou 

lisplaced  by  any 

have  a  lien  ou 

or  their  salvage 
maritime  couu- 

enforce." 


common  law  they  became  the  property  of  the  king. 
lu  this  country  the  authorities  of  the  hiw  take  [josscs- 
sion  of  such  things  and  hold  them  in  trust  for  the  true 
owner  on  establishing  his  right.*  Money  in  the  posses- 
sion of  a  prisoner  at  the  time  of  his  arrest  cannot  be 
appropriated  by  officers  who  have  him  in  charge;  and, 
although  taken  from  him  at  the  time  of  his  arrest,  is  still 
his  property  and  subject  to  his  order.^  The  private 
household  goods  of  a  criminal  are  not  affected  by  the 
crimes  and  misconduct  of  the  owner;  and  such  property 
cannot  be  destroyed  or  taken  except  by  due  process  of 
law.'*  Where  money,  plate,  or  works  of  art,  or  articles 
of  value,  are  found  hidden  in  the  earth,  they  are  called 
treasure-trove.  They  become  the  property  of  the  owner, 
if  he  can  be  found.  If  the  owner  cannot  be  found, 
the  property  goes,  in  England,  to  the  crown;  it  is  even 
a  criminal  offense  to  conceal  the  discovery  from  the 
officers  of  the  law.  In  most  of  the  United  States,  the 
legislature  has  vested  treasure-trovo  in  the  state  as  bona, 
vacantia.* 

§  1312.    Wrecks    and    Abandoned  Vessels. —  By  the 

English  common  law,  wrecks — that  is,  ships  or  vessels 
and  their  cargoes  cast  upon  the  shore — became  the  property 
of  the  crown.  The  statute  of  Edward  I.  gave  the  owner  a 
year  and  a  day  in  which  to  make  his  claim  to  the  prop- 
erty. The  same  was  the  rule  as  to  ships  and  property 
abandoned  at  sea.  By  our  statutes,  state  and  federal, 
abandoned  maritime  property,  and  also  wrecks,  vest  in  the 
government,  with  a  right  to  the  owner  to  reclaim  within 
a  certain  time,  subject  to  the  payment  of  salvage  to  the 
finder  or  rescuer.*  In  Massachusetts,  it  has  been  held 
that  a  wreck  cast  on  the  shore  belongs  to  the  owner  of 

'  2  Schouler  on  Personal  Property,  ♦  2  Schouler  on  Personal  Property, 

sec.  it.  sec.  10. 

dickers  y.  Simcox,  1  Utah,  33.  *2  Kent's  Com.   321;    Hetfiekl  v. 

"  Conway  v.  Clinton,  1  Utah,  215;  Baum,    13    Ired.  394;   57   Am.    Dec. 

Rickers  v.  Simcox,  1  Utah,  33.  5ti3. 


1.113 


PERSONAL  rnOPERTY   IN   GENERAL. 


2000 


the  shore,  against  every  one  but  the  true  owner.  lie  may 
bring  trespass  against  u  stranger  who  takes  it  away.' 
But  one  who  enters  hind  to  rescue  a  boat  and  restore  it  to 
the  owner  is  not  a  trespasser.''  One  purchasing  a  wreck 
at  a  commissioners'  sale  is  not  guilty  of  trespass  in 
hauling  the  goods  over  another's  land,  although  forbidden 
to  do  so,  where  the  goods  could  not  bo  taken  off  in  any 
other  way  without  great  inconvenience.^  If  a  vessel,  by 
unavoidable  accident,  sinks,  the  owner  may  abandon 
it,  and  is  not  liable  for  any  injury  which  it  may  after- 
wards cause  by  becoming  an  obstruction.  lie  is  not 
obliged  to  remove  the  wreck,  or  to  give  notice  of  its  posi- 
tion  by  placing  a  light  there.*  But  the  rule  appears  to 
be  different  where  the  sinking  of  his  vessel  was  duo  to 
negligence,  or  whore  the  owner  does  not  abandon  her, 
but  stays  by  the  vessel  for  the  purpose  of  recovering 
her,  if  possible.* 

§  1313.  Lost  Property  —  Rights  and  Liabilities  of 
Finders  of  Property.  —  The  finder  of  lost  property  is  en- 
titled  to  retain  it,  as  against  all  persons  except  the  true 
owner.*  Thus  it  has  been  held  that  he  so  far  stands  iii 
the  place  of  the  true  owner  that  he  may  recover  it  from  ;i 
second  finder,  he,  the  first  finder,  having  afterwards  lotifc 
it  himself.'  The  finder's  title  is  good,  even  as  against  one  in 

»  Br.fkor  v.  Bates,  U  Pick.  255;  23 
Am.  Dec.  G78;  Proctor  r.  Adams,  113 
Mass.  377;  18  Am.  Rep.  500. 

'^Proctor  V.  Adams,  113  Mass.  377; 
18  Am.  Rep.  500. 

3  Hctiield  V.  Baum,  ISIred.  394;  57 
Am.  Dec.  5G3. 

*  Gould  on  Waters,  sec.  98;  The 
Swan,  3  Blatclif.  285;  Uaucock  v.  R. 
E.  Co.,  10  Com.  B.  348;  Winpennyw. 
Philadelphia,  65  Pa.  St.  135. 

^  Boston  etc.  Co.  v.  Munson,  117 
Mass.  :U. 

•  Armory  v.  Delamirie,  1  Strange, 
504;  McAvoy  v.  Medina,  11  AlleHj 
548;  87  Am.  Dec.  733;  McLaughlin  v. 
Waite,  9  Cow.  670;  5  Wend.  404;  21 
Am.  Dec.  232;  Pinkliam  v.  Gear,  3 
]|.  H.  484;  Poole  v.  Symonds,   1  N. 


H.  289;  8  Am.  Dec.  71;  Brandouft 
Bank,  1  Stew.  320;  18  Am.  Dec.  48; 
Lawrence  v.  Buck,  62  Me.  275;  T;iii- 
cil  i'.  Seaton,  28  Gratt.  601;  20  Am. 
Rep.  380;  Durfee  v.  Jones,  11  li.  I. 
588;  23  Am.  Rep.  529;  Matthews  v. 
Harshell,  1  E.  D.  Smith,  393. 

'  Clark  r.  Maloncy,  3  Harr.  (Del.) 
68.  The  finder  or  other  person  cas- 
ually coming  to  the  possession  of  a 
public  document,  paper,  or  reconl 
gains  no  such  property  in  it  as  to  au- 
thorize liim  to  estimate  its  value  to 
one  having  an  interest  in  it,  and  to 
withhold  the  same  from  the  ri;,'htful 
owner  or  lawful  custodian  until  the 
estimated  sum  is  paid:  De  la  0.  v. 
Acoma,  1  N.  Mex.  22G. 


2o01 


TITLE  TO  PERSONAL  PROrEHTY. 


§  1313 


whoso  liouso  or  on  whoso  promises  the  lost  nrf  iclo  mny  ho 
at  the  time.  Thus  tho  finder  wiis  hold  oiititlo(l  to  rocovor 
where  ho  was  tho  conductor  or  hrakcinan  of  a  train,  and  tho 
article  was  found  hy  him  in  tho  car,  where  it  had  hoen 
left  hy  a  passenf]jor,  hut  tho  railroad  company  claimed  it;' 
so  where  a  customer  found  a  purse  on  a  shop-floor,  and  tho 
shopkeeper  claimed  it."  So  an  unmarked  saw-log  carried 
down  stream,  lodged  in  a  drift,  and  unreclaimed  for  two 
years,  is  lost  property,  and  a  former  finder  is  entitled  to 
it  as  against  tho  riparian  ownior.''  For  labor  and  expenses 
hcstowod  hy  tho  finder  u|)on  the  ^iroperty,  it  has  been 
hold  that  ho  may  recover  of  the  owner;''  and  for  his  ne- 
cessary and  reasonable  expenses  incurred  on  account  of 
the  property,  it  seems  agreed  that  he  may  recover.'^  But 
ho  is  entitled  to  no  other  reward,  unless  tho  owner  has 
expressly  offered  one."  Where  a  reward  is  offered  by  tho 
owner  for  tho  recovcrj''  of  the  lost  article,  tho  finder  has  a 
lien  on  it,  and  may  retain  the  article  until  tho  reward  is 
paid/  The  finder  is  bound  to  take  reasonable  care  of  tho 
property.  A  finder  of  stray  horses  which  died  while  ho 
was  using  them  in  his  business  was  held  liable  to  tho 
owner  for  their  value.®  The  finder  has  a  right  to  call  upon 
a  person  who  claims  to  be  the  owner  to  identify  them; 
and  to  refuse  to  deliver  them,  when  he  is  not  satisfied  of 
the  party's  title,  is  not  a  conversion.^  By  the  statutes  of 
some  states,  the  finder  is  required  to  advertise  for  tho 
owner,  and  if  the  latter  does  not  appear  within  a  certain 
time,  tho  thing  is  sold,  and  the  proceeds,  or  a  part  thereof, 


'  Now  York  and  Harlem  R.  R.  Co. 
V,  }1  iws,  .5(3  N.  Y.  175;  Tatum  v. 
Sharpluss,  G  riiihi.  18. 

■^  iJriilges  r.  Hawkesworth,  7  Eng. 
L.  &  E.).  4>J-4. 

■'  Dcudorick  v.  Oulils,  86  Tenn.  14. 

*  llcedor  v.  Anderson,  4  Dana,  193. 

'•'  Ector  r.  Edwards,  4  Watts,  C3; 
Amory  /•.  Flyn,  10  Johns.  IOC;  0  Am. 
Doc.  HIG;  Chase  v.  Corcoran,  100  Mass. 
280. 

•^  Amory  v.  Flyn,  10  Johns.  102;  0 


Am.  Dec.  310;  Watts  v.  Ward,  1  Or. 
80;  O'i  Am.  Dec.  299. 

'  Wentworth  r.  Day,  3  Jtlet.  V>r>2;  :57 
Am.  Dec.  14.5;  Prestrm  ?•.  Noale,  12 
Gray,  122;  Cummin<,'s  /'.  Ganii,  52  Pa. 
St.  484;  Wilson  v.  Guyton,  8  Gill,  213; 
Earlier  v.  Hoag,  3  Barb.  203;  Vale  v. 
Durant,  7  Allen,  409;  Wood  v.  Pier- 
son,  45  Mich.  313. 

»  Watts  V.  Ward,  1  Or.  80;  02  Am. 
Dee.  299. 

9  Wood  V.  Pieraon,  45  Mich.  313.  ^ 


§  1314 


PEUSON.U.   PROPERTY   IN   GENERAL. 


2302 


given  to  llio  liudor,  the  balance  going  to  tho  state  or  inii- 
nicipulity. 

iLLUHTnATinxs.  —  Plaintiff,  while iiidcfcndant's  Bliop  on  busi- 
nosH,  picked  iq)  froui  tho  floor  a  parcel  containing  hank  iiotcH, 
lie  gave  thoui  to  defendant  for  the  owner,  if  ho  could  he  loniHl. 
Tho  owner  could  not  ho  found.     Ifrld^  tliat  plaintiff,  as  liii'li  r, 
was  entitled  to  them,  as  against  the  defendant  as  owner  of  tlic 
shop  in  whieli  thoy  wero  found:  Jjiidycsv.  Jlaivkemcorth,  7  i'^iig, 
L.  (k  E(p  424.     A  hought  an  old  safe,  and  afterwards  oiVend  it 
to  U,  wlio  refused  to  purchase  it.      It  was  then  left  with   U  for 
sale,  M  having  porrnission  to  use  it.     15  found  between  th(^  outer 
casing  and  tho  lining  a  roll  of  bank  bills  belonging  to  somo 
person  unknown,  whereupon  A  first  demanded  the  money,  aiul 
then  demanded  the  safe  and  its  contents  as  thoy  where  when  li 
received  them.     The  safe  was  returned,  but  tho  money  ri-tiiinotl 
by  li.     Held,  that,  as  against  A,  B  was  entitled  to  retain  tho 
money:  DurJ'ce  v.  Jones,  11  K.  I.  588;  23  Am.  Rep.  52'J.    IMuin- 
tifl",  while  engaged  as  an  employee  in  the  defendant's  paper-iuill, 
in   assorting   a  bale  of  old  papers  which  tho  defendant   had 
bought  for  manufacture,  found  a  number  of  bank  notes,  in  a 
clean  unmarked  envelope,  in  a  bale,  and  delivered  them  to  tho 
defendant  for  tho  purpose  of  ascertaining  if  they  were  good,  atul 
upon  his  promise  to  return  them.     Tho   defendant  refused  to 
return  them  upon  demand.    Ilcldy  that  plaintiff  was  entitled  to 
recover  their  value  from  him:  Bowcn  v.  Sullivan,  G2  Ind.  281; 
30  Am.  Rep.  172.      A  servant  in  a  hotel  found  a  roll  of  hank 
notes  in  the  public  parlor,  and  informed  hor  master,  who  sug- 
gestcd  that  it  belonged  to  a  transient  guest,  and  received  tho 
money  from  her  to  give  to  him.     It  proved  not  to  belong  to  tho 
guest,  and  the  servant  demanded  it  from  tho  master,  who  refused 
to  return  it.     Held,  that  she  could  recover  it  from  liim:   Uam- 
aker  v.  Blanchard,  90  Pa.  St.  377;  35  Am.  Rep.  664. 

§  1314.    What  is  and  is  not  Lost  Property. — Arti- 

cles  left  by  strangers  or  customers  in  a  shop  or  other 
place  of  business,  where  it  is  probable  they  will  return 
and  claim  them,  are  not  considered  as  lost  within  the 
rule  stated  in  the  previous  section/    But  things  accident- 


'  Lawrence  v.  State,  1  Humph.  228; 
34  Am.  Dec.  044;  McAvoy  v.  Medina, 
11  Allen.  548;  87  Am.  Dec.  733.  "To 
discover  an  article  voluntarily  laid 
down  by  the  owner  within  a  banking 
bouse,  and  upon  a  deak  provided  for 


the  use  of  such  persons  having  busi- 
ness there,  is  not  the  lindiug  of  a  lost 
article  ":  Kincaid  v.  Eatcm,  9S  Mass. 
1 39.  But  see  Bridges  v.  Haw  kcsworth, 
7  Eng.  L.  &  Eq.  424. 


2302 
ate  or  mu- 


lop  on  buHi- 
bunk  ni)t(s. 
x\  l)t!  I'duihI. 
I",  aH  I'm 'If  T, 
(WIUT  of  the 
•();•//(,  7  Kilt;. 
(1h  ofl'cnHl  it 
j  with  1)  I'di' 
.•on  lht>  outiT 
ing  to  home 
1  uioney,  iiiul 
'hero  ^\h('Il  I^ 
ney  ri'laiiu'd 
;o  retain  lliu 
.  fi'l'd.    IMain- 
'spapor-inill, 
fondant   liad 
k  notcH,  in  ii 
I  thoni  to  the 
'WO  good,  and 
nt  refused  to 
as  ontitli-'d  to 
62  Ind.  281; 
I  roll  of  bunk 
or,  who  Kug- 
rec(nvod  the 
belong  to  the 
who  refused 
liim:   Ham- 


erty.— Arti- 
op  or  other 
will  return 
within  the 
gs  accident- 


2303 


TITLE   TO   PERSONiU.   PROPERTY. 


§1315 


ully  dropped  in  tiny  public  place,  or  in  the  strectd  or 
other  thorou^^hfuro,  are  lost  articles  vvitliiu  tlio  rule.  So 
where  u  thing  is  left  in  a  railroad-cur.* 

8  1315.  Title  by  Accession.  —  Accession  is  where  a 
tliiiijif  which  l)()U)n<;s  to  one  peition  becomes  the  prn[)erty 
some  one  else  by  reason  of  its  becominfj  added  lo  or 
incorporated  with  a  thing  belonging  to  the  latter.''* 
Where  the  materials  of  several  persons  are  combined  in 
one  article,  the  property  in  the  resultin"  *hing  is  in  tho 
owner  of  tho  principal  materials  whicb  wei.t  to  make  up 
the  whole.''  Tho  owner  of  tho  principal  niati-rials  of  an 
article  manufacturetl  by  another,  who  also  su[)})lied  somo 
slii^Mii  dellciencies  in  tho  materials,  is  tho  owner  of  tho 
rnunufac^turod  article,  but  tho  manufacturer  has  a  lieu 
thereon  for  his  services  and  materials.*  This  is  sometimes 
cuUecl  artificial  accession,  to  distinguish  it  from  n;nural 
accession.     Natural  accession  is  tho  addition  whicii  may 

10  nuide  to  a  thing  by  tho  forces  of  nature.  Examples  of 
is  are  found  in  tho  addition  to  land  by  the  receding  of 
a  river  or  other  water,  called  accretion  and  alluvion;  tho 
natural  increase  of  animals  by  breeding;  the  growth  of 
a  tree  or  tho  fruit  on  it;  the  production  of  ico  on  a  pond 
by  the  frost.  Those  natural  accessions  belong  in  almost 
all  eases  to  tho  owner  of  the  principal  thing  to  or  on 
whieii  they  come.'' 

'  Tituin  V.  Sharpless,  G  Phila.  18;  102;  Eaton  v.  Lyndo,  15  Mass.  242; 

Nuw  Viiik  and  Harlum  R.  R.  Co.  v.  Gi-egory  v.  Strylicr,    2    Denio,    G28; 

Haw-,  .Jli  N.  Y   175.  Stephens  v,  BriggM,  f)  ]Mck.  177. 

■'  Mciiitt  V.  Johnson,  7  Johns.  473;        *  Dunn  v.  O'Neal,  1  Sncud,  lOG;  GO 

5  Am.  Dec.  2S'.);  Lampton  v.  Preston,  Am.  Dec.  140. 

1  J.  .1.  Miiraii.  454;  19  Am.  Dec.  104.  ^  Thus  a  tree  belongs  to  the  owner 
iSco  nolo  to  Balcer  w.  Wheeler,  8  Wend,  of  tho  land  in  which  tlio  root  is;  fruit 
50.'),  ill  '21  Am.  Dec.  70-88;  Pulciferv.  on  a  tree  to  the  owner  of  the  tree: 
P.igc,  H2  Mo.  401;  54  Am.  Dec.  582.  Waterman  v.  Sopor,  1  Ld.  llayni.  737; 
Suu  iioto  in  54  Am.  Dec.  58;J-597.  even  where  tiio  limhi  may  overhang 
Buililiiig  a  rail  fence  on  another's  land  tho  land  of  another:  lloii'man  *'.  Arm- 
vests  the  rails  in  tho  owner  of  tlie  laud:  strong,  4G  Barb.  .SIJ7;  young  animals 
Wont/  ('.  Fincher,  12  Ired.  297;  55  to  the  owner  of  tho  female:  See  posi, 
Am.  Due,  410.  Title  Animals;  ico  to  tlie  owner  of  the 

^  ruloifer  v.  Page,  32  Me.  404;   54  water  on  which  it  is  formed:   Higgina 

Am.  Due.   582;   Babcock  v.   Gill,    10  v.  Custerer,  41   Midi.  318;  crops  be- 

JoLus.  287;  NYorth  v.  Northam,  4  Ired.  long  to  the  owner  of  the  laud  on  which 


§  1310 


PERSONAL  PROPERTY  IN  GENERAL. 


2394 


§  1316.    Where  Defendant  is  a  Trespasser.  —  A  tres- 

passer  or  other  -wrong-doer  who  takes  the  property  of 
another,  and  changes  or  improves  it  by  his  labor  or 
skill,  or  by  adding  to  it  new  materials  of  his  own,  cannot 
acquire  any  title  to  the  improved  chattel,  even  to  what  ho 
has  added,  and  the  original  owner  may  recover  it  from 
him  in  its  improved  state,  or  he  may  sue  for  its  improved 
value  in  an  action  for  damages.^  A  trespasser  who  cuts 
grass  growing  on  land  is  not,  as  to  the  owner  of  the  land, 
tlie  owner  of  the  hay  made  from  the  grass,  and  cannot 
recover  for  its  destruction  by  the  owner's  negligence.'^ 
Where  Avood  has  been  converted  and  made  into  coal  by 
the  defendant,  the  owner  is  entitled  to  maintain  trover 
for  the  coal.'  No  trespass  is  committed  in  the  owner 
taking  possession  of  the  frame  of  a  boat  which  had  been 
made  from  his  t'     ■»er  by  a  trespasser.* 

Illustrations.  —  A  trespasser  took  A's  corn,  and  aftonvard 
manufactured  it  into  whisky.  Held,  that  A  was  entitled  to  re- 
cover the  wliisky  from  the  trespasser:  Silshury  v.  McCoon,  3 
N,  Y.  383;  53  Am.  Dec.  307.  A  trespasser  took  and  cut  down 
B'h  trees,  and  made  them  into  shingles.    Held,  that  B  could  re- 


tlicy  grow:  Reilly  v.  Royland,  39  Iowa, 
lOu;  Fieemaii  v.  McLeuiiau,  2G  Kan. 
15];  [)l,ii)ts  iiiiil  sliriibs,  the  growth  of 
cuttings  from  plauts  aud  shrubs  inort- 
gageil,  pass  to  the  mortgagee  by  ac- 
cession: Brya  t  v.  Peunell,  61  Me. 
108;  14  Am.  Hop.  550;  a  dividend 
earned,  but  not  declared,  before  a 
transfer  bclonga  to  the  owner  of  the 
stock  wlien  the  dividend  is  declared, 
and  not  to  the  prior  owner:  Brundage 
V.  Brnmlago,  05  Barb.  397. 

'  Pierce  V.  Scheuck,  3  Hill,  28; 
Pierce  V.  Gmldard,  22  Pick.  501;  33 
Am.  Dec.  704;  Eastman  v.  Harris,  4 
La.  Ann.  li»3:  Mitchell  v.  Stetson,  7 
Cusli.  -im);  Riddle  v.  Driver,  12  Ala. 
500;  Eaton  o.  Munroe,  52  Me.  63; 
Isle  Royal  Mining  Co.  v.  Hertin,  37 
Mich.  3;{2;  20  Am.  Rep.  520;  Baker 
V.  Whiicler,  8  Weud.  505;  24  Am. 
Dec.  87;  Babcock  v.  Gill,  10  Johns. 
287;  Brown  v.  Sax,  7  Cow.  95;  Ricer. 
HoUenbcck,  19  Barb.  604;  Final  v. 
Backus,   18   Mkh.   218;  Bly  v.  U.  S., 


4  Dill.  464.  "  And  if  the  wroug-.lner 
sell  the  chattel  to  an  honest  ])iir- 
chaser,  having  no  notice  of  tliu  fiiu.lby 
which  it  was  acquired,  the  purcliiser 
obtains  no  title  irom  the  tru.si),ts,siT, 
because  the  trespasser  had  noni'  to 
give":  Silsbury  v.  McCoou,  8  N.  Y, 
383;  53  Am.  Dec.  307;  overruling 
6  Hill,  425;  41  Am.  Dee.  75S;  lltard 
V.  James.  49  Miss.  230;  Nv.J.itt  n. 
Lumber  Co.,  21  Minn.  *'.)I;  Htniliher. 
R.  R.  Co.,  78 Ky.  481 ;  39  Am.  llei..  -lol 

^Lindsay  v.  R.  R.  Co.,  2!)  Miiui. 
411;  43  Am.  Rep.  228.  A  trfsjasser 
who  sows  and  gathers  tir(ii>s  is  the 
owner  of  them,  even  against  the  owner 
of  the  land:  Lindsay  v.  K.  K.  Co.,  29 
Minn.  411;  43  Am.  Rep.  2l'S. 

»  Riddle?'.  Driver,  12  Ala.  .')90;Betta 
V.  Lee,  5  Johns.  348;  4  Am.  iVo.  ;W8; 
Chandler  i\  Edson,  9  Johns,  'ill:';  Cur- 
tis V.  Groat,  6  Johns.  108;  5  .i:u.  Die, 
204;  Babcock  v.  Gill,  10  Johns.  '.'87. 

*  Burris  v.  Joliusou,  1  J.  J.  M.usb. 
196. 


I 


2394 

jr.  —  A  t  res- 
property  of 
liis  labor  or 
own,  cannot 
ci  to  wliat  he 
over  it  from 
its  improved 
iser  who  cuts 
r  of  the  umd, 
,  and  cannot 
negligence.^ 
)  into  coal  by 
intain  trover 
a   the  owner 
ich  bad  been 


and  aftonvavd 

I  entitled  to  re- 

/  V.  McCoon,  3 

and  cut  down 

hat  B  could  re- 

if  the  wrong-(li>cr 
)  an  honest  ])iir- 
ticeof  thutV.ni.lljy 
red,  tlio  iniri'liaser 
im  the  tiusp.issiT, 
,Hser  had  noiu'  to 
McCoon,  3  N.  Y. 
307;  overruling 
Dee.  7o;>;   Heard 

'2'M;-     N.:.-.l'itt  ". 

in.  4'.)1;  .Stnililie  /•. 

;3'J  Am.ll.'|i.-Jol. 

R.   Co.,  21)  -Miim. 

28.     A  trespiisser 

ihers   crops   is  the 

against  the  nwi'.er 
ay  V.  K.  K.  e'"-,  '20 
Ren.  -i-'S. 

12Ala.  ,')Or);]5ctt3 
.8;  4  Am.  iVo.  *iS; 
9  Johns.  ;;tW;  Cur- 
ia. lt)8;  5  Am.  Uec. 
11,  10  Johns.  'JS7. 
son,  1  J.  J.  M'lrsh, 


2395 


TITLE  TO  PERSONAL  PROPERTY.   §§  1317,  1318 


cover  from  him  the  value  of  the  shingles:  Betts  v.  Lee,  5  Johns. 
349;  4  Am.  Dec.  368.* 

§  1317.    Where  the  Defendant  is  not  a  Wrongdoer.  — 

But  "  if  the  chattel  wrongfully  taken  afterwards  come  into 
the  hands  of  an  innocent  holder,  who,  believing  himself 
to  be  the  owner,  converts  tho  chattel  into  a  thing  of  a 
different  species,  so  that  its  identity  is  destroyed,  the 
original  owner  cannot  reclaim  it.'"'  So  where  a  person 
by  mistake,  and  under  a  6orja^c?ebelief  of  right,  takes  the 
pro]>erty  of  another,  and  bestows  labor  on  it,  or  increases 
its  value,  he  is  entitled  to  a  recompense  for  its  increased 
value.^ 

§  1318.  Tiuie  by  Confusion.  —  Confusion  of  goods  arises 
where  the  goods  of  two  or  more  persons  are  so  intermixed 
that  the  several  parts  or  portions  can  no  longer  bo  distin- 
guished. Here  the  one  who  has  caused  the  confusion  loses 
hid  property  for  his  pains.'*  But  this  is  not  true  in  all 
cases,  as  the  succeeding  sections  will  show,  and  tho  rule 
is  carried  no  further  tlian  the  necessity  of  the  case  re- 


1  So  where  the  trees  were  made  into 
posts  and  rails:  Snyder  i;.  Vanx,  2 
Rawle,  4--'3;  21  Am.  Dee.  460.  So 
wliero  tiicy  were  made  into  charcoal: 
Cnriis  /•.  Oroat,  6  Johns.  169;  5  Am. 
Due.  'J()4. 

Wctherhee  v.  Green,  22  Mich.  311; 
7  Am.  Hop.  053;  Wood  v.  Morewood, 
3  Q.  1>.  440,  note;  Potter  v.  Mardre,  74 
N.  C.  'Mi;  Martin  v.  Mason,  78  Me. 
452.  "Such  a  change  is  said  to  he 
vronght  wlien  wheat  is  made  into 
bri;iiii,  olives  into  oil,  or  grapes 
into  wine.  In  a  case  of  this  kind 
tlie  chan^'o  in  the  species  of  the  chat- 
tel is  not  an  intentional  wrons;  to 
the  original  owner.  It  is  therefore 
regarded  us  a  destruction  orconsunip- 
ticiu  o!'  the  original  materials,  and  the 
true  owner  is  not  permitted  to  trace 
tlieir  identity  into  the  manufactured 
article,  for  the  purpose  of  appropriat- 
ing to  his  own  use  tho  lahor  and  skill 
of  tho  original  occupant  who  wrought 
the  cUaugc;  but  he  is  put  to  his  actiou 


for  damckges  as  for  a  thing  consumed, 
and  may  recover  its  value  as  it  waa 
when  the  conversimi  or  consumption 
took  place ":  Silsbnry  v.  Mct'oon, 
3  N.  Y.  383;  53  Am.  Deo.  :i07.  As  to 
fixtures,  see  Title  F'xtures,  po-ft. 

*  Wood  V.  Morewood,  3  Q.  li.  440, 
note;  Forsytli  v.  WclLs,  41  Pa.  St. 
291;  80  Am.  Dec.  617;  Coleman's  Ap. 
peal,  62  Pa.  St.  278;  Waters  v.  Ste- 
venson, 13  Nov.  1.".7;  29  Am.  Hop.  293; 
Goller  ('.  Felt,  30  Cul.  481 ;  Winchester 
V.  Craig,  33  Mich.  30:>;  Uydc  v.  Cook- 
son,  21  Barb.  92;  Lykens  \'!illoy  Coal 
Co.  V.  Dock,  02  Pa.  St.  232;  Ituckloy 
V.  Buckley,  12  Nov.  423;  Lake  Shore 
R.  R.  Co.  V.  Hutchius,  32  Ohio  St. 
571;  30  Am.  Rep.  629. 

*  Hcsseltine  v.  Stock  well,  30  Me. 
237;  50  Am.  Dec.  627.  In  a  late  case 
in  North  Carolina  it  was  ruled  that  tlie 
doctrine  of  confusion  of  goods  does  not 
apply  to  the  intermixture  of  f;oods  of 
different  kinds  in  a  store:  Queen  t>. 
Wernwag,  97  N.  C.  3S3. 


§1319 


PERSONAL   PROPERTY    IN    OENEBAI.. 


239G 


quires.    Each  owner  is  entitled  to  reclaim  what  had  before 
belonged  to  him,  if  the  mixed  articles  were  of  equal  value, 
or  if  the  owner's  can  be  distinguished  and  separated  from 
the  rest,  and  it  is  therefore  only  where  the  intermixture 
has  so  combined  and  blended  the  different  parcels  or  por- 
tions that  they  can  no  longer  be  identified  that  the  property 
cannot  be  recovered.^    And  where  the  goods  mixed  are  of 
equal  value,  each  owner  may  take  his  proportion  of  tueni, 
even  where  the  admixture  is  fraudulent.''    The  owner  of 
personal  property  may  pursue  it  wherever  he  can  trace 
it.     Where,  however,  the  property  has  been  so  changed 
in  its  character  as  to  have  lost  its  identity,  it  ceases  to 
have  the  same  legal  existence,  and  the  owner  cannot  pur- 
sue it  against  third  persons.^     If  the  goods  can  bo  distiii- 
guished  and  separated,  each  may  claim  his  own;  if  the 
goods  are  of  the  same  nature  and  value,  as  corn,  lea,  etc., 
then  each  may  claim  his  aliquot  part;  but  if  the  mixture 
is  not  distinguishable,  nor  an  aliquot  division  possible, 
then  the  party  who  occasions  or  through  whose  neglect  or 
fault  occurs  the  wrongful  mixture  must  bear  the  whole 
loss.'* 

§  1319.  By  Misconduct  of  Party. — Where  the  inter- 
mixture  is  the  result  of  one's  misconduct,  he  must  bear 
the  loss.  Ho  cannot  recover  for  his  own  proportion,  or 
for  an}'  part  of  the  intermixture,  but  the  entire  property 
vests  in  him  whose  right  is  invaded.  The  latter  may 
replevy  the  whole,  or  sue  in  damages  for  its  value,  and  is 
not  obliged  to  compensate  the  other  at  all.^     So  if  one, 


*  Smith  V.  iSaaboni,  72  Mass.  134; 
Ooodouow  V.  Snyder,  3  G.  Greene, 
599;  Hcsseltine  v.  Htoekwcll,  30  Me. 
237;  50  Am.  Doe.  (j'27;  Robinson  v. 
Holt,  39  N.  H.  i)7u;  75  Am.  Dec.  233; 
Adams  v.  Myers.  1  Saw.  306;  Brakeley 
V.  Tuttle.  3  \V.  Va.  80;  Goff  v.  Brain- 
erd,  58  Vt.  408. 

■^  Hessdtiuo  v.  Stockwell,  30  Me. 
237;  50  Am.  Dec.  027;  Stephenson  v. 
Little,  10  Mich.  441;  Sims  v.  Gla- 
2eaer,  U  Ala.  ti95;  48  Am.  Dec.  120. 


*  Cross  V.  Marston,  17  Vt.  oX);  U 
Am.  Dec.  .353. 

*  Robinson  v.  Holt,  .39  N.  II.  i)"i; 
75  Am.  Dec.  233. 

"  The  Idaho,  93  U.  S.  575;  nxdvrv. 
Hathaway,  21  Pick.  298;  Steplionson 
V.  Little,  10  Mich.  43.3;  Spenco  /'.  Ins. 
Co.,  L.  R.  3  Com.  P.  427;  Jenkins  /•. 
Steanka,  19  Wis.  120;  SS  Am.  Deo, 
675;  Jewett  v.  Drinj,'ur,  30  N.  J.  Eq. 
291,  and  see  note  pp.  lil'l  tt  isiq. 
Warner  v,  Cuslxman,  31  111.  233;  Ueach 


2396 


2397 


TITLE  TO  PERSONAL  PROPERTY. 


§  1319 


t  had  before 
equal  value, 
tarated  from 
ntcrmixlure 
reels  or  jior- 
the  property 
mixed  are  of 
ion  of  liicm, 
["he  owner  of 
he  can  trace 
L  so  changed 
,  it  ceases  to 
•  cannot  pur- 
;an  be  distiu- 
,  own;  if  the 
!orn,  tea,  etc., 
f  the  mixture 
sion  possible, 
lOse  neglect  or 
ear  the  wliole 

.ere  the  inter- 
10  must  bear 
)roportion,  or 
itire  property 
\e  latter  may 
value,  and  is 
■'  So  if  one, 
,n,  17  Vt.  5:!:i;  44 
:)lt,  39  N.  II.  55?; 

J.  S.  573;  Ryder  1'. 
:.  298;  Steiilionsnn 
133;  Spuuce  /•.  Ins. 
?.  427;  -liMikm*  '■■ 
1'2G-  fiS  Am.  l^tn.'. 
in^cr,  30  N.  J.  E4. 
te  pp.  --'1  ''^  "^'^ 
I,  31  111.  233;  Beach 


intending  to  mislead  the  tnie  owner,  mingles  his  own 
goods  with  his,  he  by  this  fraud  loses  his  own  portion  of 
the  whole*  Where  one  person  adds  mill-logs  of  his  own 
to  a  pile  of  logs  belonging  to  another  person,  and  marks 
them  in  the  same  manner  as  the  others  are  already 
marked,  he  cannot  afterwards  maintain  replevin  against 
such  other  person  for  such  logs  as  he  can  identify  to  be 
his  own.*^  Where  a  trustee  or  one  in  charge  of  another's 
property  so  confounds  it  with  his  own  that  it  cannot  be 
di.stinguished,  he  will  lose  it  all,  unless  he  can  clearly 
identify  his  portion.^  If  a  third  party  willfully  mixes  or 
confuses  with  his  own  the  goods  of  a  debtor  which  have 
been  transferred  to  him  by  such  debtor,  with  the  intent 
to  delay,  hinder,  or  defraud  his  creditors,  and  an  attach- 
ment against  such  debtor  is  levied  upon  the  goods  so 
confused  and  mixed  together,  the  fraudulent  purchaser 
has  the  burden  of  identifying  his  own  goods  from  those 
embraced  by  such  transfer,  in  order  to  exempt  the  goods 
so  owned  by  him  from  sale  under  the  attachment.* 

Illustrations.  —  A,  having  mortgaged  a  number  of  hats  to 
B,  was  employed  by  B  to  sell  them.  A  mixed  them  up  with 
hats  of  his  own,  and  sent  the  lot  to  D  to  sell.  Held,  that  B 
was  entitled  to  recover  in  trover  against  D  all  the  hats:  Wil' 
hrd  v.  Rice,  11  Met.  493;  45  Am.  Dec.  226.  Plaintiff  cut 
timber  on  the  defendants'  land,  and  intermingled  it  with  his 
own,  marking  it  with  the  same  mark.  Defendants  not  being 
able  to  identify  the  timber  cut  from  their  land,  and  intending  in 
good  faith  only  to  retake  their  own  timber,  actually  took  more. 
Held,  that  the  defendants  would  not  be  liable  as  wrong-doers 


!•.  Sclimultz,  20  111.  185;  Willard  v. 
Rice,  11  .Met.  493;  45  Am,  Dec.  22(5; 
Wingate  v.  Smith,  20  Me.  287;  Mc- 
Dowell V.  Russell,  37  Pa.  St.  164; 
Ailaius  I'.  Wildes,  107  Mass.  125; 
Stan- ('.  Wiugar,  3  Hun,  491;  Robin- 
eon  /'.  Hcilt,  39  N.  H.  557;  75  Am.  Dec. 
2;;3;  Alley  r.  Adams,  44  Ala.  009; 
Riwt  r.  Boiieman,  22  Wis.  539;  Dill- 
inghain  v.  Smitli,  30  Me.  370. 

'  Ryder  V.  Hathaway,  21  Pick.  298; 
i^tearua  v.  Herrick,  132  Mass.  114.  See 
Lehman  v.  Kelly,  68  Ala.  192. 


'^  Beach  v.  Schmultz,  20  111.  185; 
Brackenridge  v.  Holland,  2  Blatchf. 
377;  Seavy  v.  Dearborn,  19  N.  H. 
351;  Robinson  r.  Holt,  39  N.  H.  557; 
75  Am.  Dec.  233;  Hart  v.  Ten  Eyck, 
2  Johns.  Ch.  62;  Wilson  v.  Nason,  4 
Bosw.  155;  Brakeley  v.  Tuttle,  3  W. 
Va.  86. 

'  2  Schouler  on  Personal  Property, 
48. 

♦  Weil  V.  Silverstone,  G  Bush,  698; 
Thome  v.  Colton,  27  Iowa,  427. 


§1320 


PERSONAL  PROPERTY  IN  GENERAL. 


2398 


until  the  plaintiif  had  pointed  out  his  property  and  demanded 
it  of  them:    Smith  v.  Morrill,  56  Me.  5G6.     A  junk-clealor,  bv 
fraudulent  collusion  with  the  employees  of  a  railroad  corpora- 
tion, ol)tainod  large  quantities  of  old  iron,  etc.,  at  much  less  than 
the  actual  weight  or  value.     On  delivery  it  was  thrown  indis- 
criminately on  heaps  of  other  old  iron,  etc.,  belonging  to  liim, 
60  as  to  be  indistinguishable.     Held,   that  he  must  forfeit  the 
whole  mass  to  the  company:    Jewctt  v.  Dringer,  30  N.  J.  E(i. 
291.     A  sold  timber  to  B,  to  be  cut  from  A's  land,  and  by  the 
contract  retained  a  lien  until  payment.     B  sold   timber  cut 
under  this  contract  together  with  other  timber,  to  C.   Held,  that 
A,  in  enforcing  hislien  against  C,  was  bound  to  make  separation; 
Foster  v.  Warner,  49  Mich.  641.     A   person  mingled   his  iiay 
with  that  of  a  judgment  debtor,  and  did  not  and  could  not 
identify  his  own.    Held,  that  the  mass  became  the  property  of 
the  judgment  debtor,  as  between  the  party  mixing  the  hay  and 
an  ofljcer   levying  upon  the  same  under  a  writ  of  exccntioa 
against  the  debtor:  Robinson  v.  Holt,  39  N.  H.  557;  75  Am, 
Dec.  233.     An  owner  so  commingled  stone  quarried  with  that 
seized  by  a  sheriff  under  process  from  a  state  court  that  that 
seized  could   not  be   distinguished   from  that  since  quarried. 
Held,  not  entitled  to  bring  replevin    in  the   federal   court  to 
recover  the  stone  since  quarried:    Williams  v.  Morrison,  32  Fed. 
Rep.  177. 

§  1320.  By  Consent  of  the  Parties, — Where  the  inter- 
mixture  is  by  the  consent  of  the  parties,  each  owner 
becomes  a  tenant  in  common  in  proportion  to  liis  respcet- 
ive  share  of  the  whole  mass.*  A  contract  that  AV.  shall 
find  timber,  and  that  T.  shall  manufacture  it  into 
shingles,  and  have  three  thousand  five  hundred  of  every 
five  thousand  manufactured,  makes  W.  the  owner  of 
three  tenths  of  the  shingles,  and  T.  of  seven  tenths 
of  them;  and  until  some  division  is  made  they  be- 
come  tenants  in  common  of  the  shingles.'*  Where  grain 
belonging  to  different  owners  is  stored  by  a  warehouse- 
man,  and  is  all  intermingled  in  one  common  mass,  accord- 

'  2  Schoulcr  on  Personal  Property,  111.  150;  85  Am.  Dec.  .397;  W.irneri'. 

45;  Nowlen  v.   Colt,   6  Hill,    4G1;  41  Cusliman,  31  111.  283;  Low  v.  .ALiitin, 

Am.  Dec.  750;  8ims  v.  Glazener,   14  18  111.  286;  Adams  v.   Myers,  1  8iiw, 

AL-i.   6<>5;  48   Am.    Dec.    120;   Ingle-  300;  Lansing  t;.  Stowell;  37  How.  Pr, 

bright?'.  Hammond,   19  Ohio,  337;  53  88;  Wilson  w.  Naxon,  4  Bosw.  ].w. 
Am.   Dec.  430;  Dole  v.  Olmstead,  36        ^  White  v.  Brooks,  43  K.  H.  402, 


2391) 


TITLE  TO  PERSONAL  PROPERTY.   §§  1321,  1322 


mg  to  usage,  and  without  objection  of  the  owners,  it  be- 
comes  common  property,  owned  by  all  in  the  proportions 
in  which  each  has  contributed  to  the  common  stock,  and 
all  are  liable  to  sustain  in  the  same  proportion  any  loss 
occurring  by  diminution,  decay,  or  otherwise.  And  so 
any  holders  of  receipts  for  grain  who  have  received  the 
full  amount  in  such  case  may  be  compelled  by  equity  to 
account  for  the  surplus  over  and  above  their  ratable 
shure.^ 

Illustrations.  —  One  of  two  tenants  in  common  of  a  quan- 
tity of  shot-iron  took  possession  of  tlie  whole,  inix(!d  it  with 
other  iron  so  that  the  two  lots  could  not  be  distinguislied,  man- 
ufactured the  entire  quantity,  and  sold  the  manufactured  arti- 
cles. Held,  that  these  acts  amounted  to  a  conversion  of  the 
sliare  of  his  co-tenant:  Redington  v.  Chase,  44  N.  H.  o(j;  82  Am, 
Dec.  189. 

§  1321.  By  Mistake  of  Party.  — Where  the  confusion 
is  the  result  of  the  party's  accidental  mistake  or  error,  or 
even  his  negligence,  where  willfulness  or  fraud  are  want- 
ing, he  does  not  lose  his  part,  but  is  permitted  to  prove 
his  portion,  and  recover  it.'' 

Illustuations.  —  In  filling  certain  contracts  for  the  delivery 
of  a  definite  number  of  railroad  ties  of  a  specified  quality  and 
description,  C.  delivered  some  twenty  thousand  of  like  quality, 
value,  and  description  in  excess  of  the  contracts, which  D.  refused 
to  accept.  Such  surplus  having,  by  the  act  of  C,  and  without  fault 
on  the  part  of  D.,  become  so  intermingled  with  the  accepted 
ties  belonging  to  D.  as  to  be  undistinguishable  therefrom,  held, 
that  D.  was  entitled  of  right  to  take  and  use  from  the  common 
lot  a  number  equal  to  his  proportionate  share  of  the  whole: 
Chandler  v.  De  Graff,  25  Minn.  88. 

§  1322.  Act  of  Stranger. — Where  the  confusion  is 
caused  by  the  act  of  a  stranger,  to  which  neither  of  the 


'  Dole  V.  Olmatead,  36  111.  150;  85 
Am.  Dec.  397. 

''  2  .Soliouler  on  Personal  Property, 
sec.  4'J;  Jlyder  v.  Hathaway,  21  Pick. 
298;  Wetherbeew.  Green,  22  Mich.  31 1 ; 
7  Am.  Kep.  653;  Thome  v.  Colton,  27 
Iowa,  425;  Heaseltiue  v,  Stockwell,  30 
Me.  237;  50  Am.  Dec.  627;  Pratt  v. 


Bryant,  20  Vt.  333;  Moore  v.  Bow- 
man, 37  N.  H.  494;  Dif  tille.,1  Spirits, 
11  Wall.  356;  Weymouth  v.  R.  11.  Co., 
17  Wis.  550;  84  Am.  Deo.  703;  Win- 
chester V.  Craig,  33  Mich.  205;  Treab 
V.  Barber,  7  Conn.  274;  Smitli  v.  San- 
born, 6  Gray,  134;  Davis  v.  Krum,  12 
Mo.  279. 


§§  1323-1325      PERSONAL  PEOPERTY  IN  GENERAL.  2400 


parties  is  privy,  it  seems  to  be  now  well  settled  that  they 
—  that  is,  the  owners  —  become  owners  in  common  ot' 
the  mass.*  An  owner  of  personal  property  cannot, 
against  his  will,  be  deprived  of  the  title  to  such  property 
by  having  it  attached,  without  his  consent,  to  the  real 
estate  of  another  by  a  third  person,  where  such  personal 
property  can  be  removed  from  such  real  estate  without 
any  great  inconvenience  and  without  any  substantial 
injury  to  the  real  estate.'^ 

§  1323.  Inevitable  Accident  or  Vis  Major. — So  whore 
the  confusion  is  the  result  of  inevitable  accident  or  vis 
major,  the  parties  whose  goods  have  become  intermingled 
own  the  mass  in  common,  each  according  to  his  share,  if 
that  can  be  proved;  otherwise,  in  equal  portions,'* 

§  1324.    Title  by  Gift— Gifts  Defined  and  Classified.-- 

Gifts  are  either  inter  vivos  or  causa  mortis.  A  gift  inter 
vivos  is  the  ordinary  gift  from  one  person  to  another,  or, 
in  other  words,  the  transfer  of  property  without  any  con- 
sideration.*  A  gift  causa  mortis  is  one  made  in  expectation 
of  death,  to  take  effect  only  in  the  case  that  the  donor 
dies.  The  burden  of  proving  a  gift  of  personal  property 
rests  on  the  claimant.* 

§  1325.  Gifts  inter  Vivos  — What  may  be  the  Subject 
of. — "All  corporeal  movables  will  pass  by  manual  gift 
accompanied  by  delivery.""  So  will  a  chose  in  action, 
as  a  promissory  note,^  or  a  policy  of  insurance.^  So  may 
imperfect  obligations,  as  the  duty  of  a  minor  son  to  give 
his  earnings  to  his  father.^ 


^  2  Schoiiler  on  Personal  Property, 
50;  Sims  v  Olazener,  14  Ala.  695;  48 
Am.  Dec.  120. 

^  Slioomaker  ?>.  Simpson,  16  Kan.  43. 

»  Moore  v.  II.  R.  Co.,  7  Lani,  39; 
Speuce  V.  Ins.  Co.,  L.  R.  3  Com.  P. 
427;  iSharp  v.  United  States,  12  Ct.  of 
CI.  C38;  Bryant  v.  Ware,  30  Me.  298. 

♦  Bouvier's  Law  Dictionary. 


*  Lewis  V.  Merritt,  42  Hun,  101. 
*Bogan  V.  Finlay,  19  La.  Ann.  94; 

Maillot  ?\  Wesley,  11  La.  Ann.  -107. 

'  Stewart  v.  Hidden,  13  Minn.  43; 
Coutant  V.  SchujJer,  i  Paige,  318; 
Bedell?'.  Carll,  33  N.  Y.  581. 

*  Lemon  v.  Ins.  Co.,  38  Conn.  294. 

*  Atwood  V.  Holcomb,  39  Conn.  270; 
12  Am.  Rep.  386. 


2401 


TITLE  TO  PERSONAL  TROPERTY.   g§  1320,  1327 


Ttj.ustrattons.  —  The  holder  agreed  to  surrender  to  the 
maker  a  note  of  $674  on  payment  of  $')0(),  and  did  do  so. 
Jli'hl,  tliat  the  payment  of  the  $500  diseljargcd  tlie  whole  d('l)t, 
anil  tliiit  the  trausaetion  Wiis  to  bo  regarded  as  a  gift  of  tho 
unpaid  balanee:  Htewnrt  v.  Hidden,  13  Minn.  43.  Defendants 
liaving  let  a  job  to  phiintiffs  for  a  specified  price,  it  was  agreed 
that  defendants  should  retain  five  thousand  dollars  thereof, 
which  agreement  was  rej)eatcdly  recognized,  and  at  length 
coiiii>let('ly  carried  out.  Held,  that  this  amounted  to  a  gift,  or 
an  abatement  of  the  five  thousand  dollars  from  the  contract 
price:  Butler  v.  Bohn,  31  Minn.  325. 

§  1326.     Subject-matter  and  Donee   must  be  Definite. 

— The  subject-raattor  of  a  gift  must  be  certain,  delinitc, 
and  capable  of  delivery.  The  certainty, however,  is  liber- 
ally interpreted,  as  where  a  father  gave  "  one  half  of  all 
the  personal  estate  of  which  I  may  die  possessed."^  So 
the  intended  donee  must  be  in  existence  at  the  time;  one 
cannot,  without  using  the  instrumentality  of  a  trustee, 
give  property  to  children  yet  to  be  born.  "  A  direct  gift 
of  [(crsonalty  to  persons  not  in  esse  cannot  bo."  ^  Wlicre 
a  church  organ  is  bought  with  funds  raised  by  voluntary 
subscription,  whether  the  property  shall  remain  in  tho 
contributors  or  pass  by  gift  to  the  cliurch  or  society 
depends  upon  the  intention  of  the  contributors.'  On 
the  question  of  whether  a  man  made  to  his  wife  a  gift  of 
a  note,  he  may  testify  to  his  intent.* 

§  1327.  Unexecuted  Gift— Promise  to  Make  Gift  — 
Revocation.  —  A  promise  to  make  a  gift  is  not  enforceable, 
for  it  may  be  revoked  by  the  promisor  at  any  timc.^  So 
an  intention  to  make  a  gift  is  unavailing  until  it  is  car- 


'  Bntlor  V.  Scoficlcl,  4  J.  J.  Marsh. 
139;  -JO  Am.  Deo.  211. 

-  H:ill  r.  Thomas,  3  Stroh.  101. 

'Ddwncs  V.  Uuion  Cong.  Soc,  C3 
N.  H.  Ml. 

*Pritchara«.  Hirt,  39  Hiin,  378. 

*  Penrsou  v.  Pearson,  7  Johns.  26; 
Fink  ('.  Cox,  18  Johns.  145;  9  Am. 
Deo.  I'Jl;  Pitts  v.  Mangum,  2  Bail. 
151 


588;  Phelps  v.  Bond,  23  N.  Y.  69; 
Antrobus  v.  Smith,  12  Ves.  Jr.  39; 
In  re  Campbell's  Estate,  7  Pa.  St.  100; 
47  Am.  Dec.  503;  Frost  v.  Frost,  33 
Vt.  639;  Taylor  v.  Staples,  8  R.  I. 
170;  5  Am.  Rep.  556;  Blasdel  v. 
Locke,  62  N.  H.  2:i8;  Brink  v.  Gould, 
7  Lans.  425;  Spencer?'.  Vance,  57  Mo. 
437;  Bond  V.  Bunting,  119  Mass.  474. 


§1327 


PERSONAL  PROPERTY   IN   GENERAL. 


2402 


ried  into  effect.*    The  gift  of  a  chattel  to  take  effect  in  tlio 
future   is  without   consideration,  and    not    enforceabk.- 
But  a  voluntary  gift  of  personal  estate  by  deed  to  take 
effect   after  death,  reserving  the  use  and  possession   in 
the  donor  during  life,  may  be  made  without  the  inter- 
vention of  trustees.'     A  gift  of  a  note,  unsupported  by 
any  valuable  consideration,  may  be  revoked  before  pay- 
ment.''     So  a  gift  of   a   check  on  the  eve   of  marriage 
by  the  man  to  the  woman,  not  in  consideration  of  the 
marriage,    may  be  revoked.^     When  the  obligee  volun- 
tarily gave  the  obligor  an  order   on  his  agent   for  the 
delivery  of  the  bond  which  was  not  obeyed,  it  was  hold 
that  the  gift  was  incomplete,  and  might  be  revoked,  and 
resuming  possession  and  bringing  suit  was  a  revocation.'' 
To  the  general  rule  there  are  exceptions.     A  promise  to 
settle  upon  or  give  property  to  a  wife  or  a  child  has  been 
sustained  by  equity  when  in  writing  and  under  soal.^    A 
court  of  equity  will  effectuate  a  gift  of  lands  by  a  father 
±0  his  child  evidenced  only  by  an  unsealed  instrument 
delivered  to  the  child.®     So  voluntary  subscriptions  for 
charitable  purposes  have  been  enforced  against  the  sub- 
scribers, on  the  theory,  though,  that  the  promise  of  each 
subscriber  was  a  consideration  for  the  other.^ 

Illustrations. — A  father  gave  his  son  his  promissory  note  for 
one  thousand  dollars,  payable  sixty  days  after  date.  Held,  that 
this  was  a  mere  promise  to  make  a  gift,  and  could  not  be  recov- 
ered by  the  son  against  the  executor  of  the  father:  Fink  v.  Cox, 


'  Peck  V.  Brummaghn,  31  Cai.  440; 
89  Am.  Dec.  195;  Crawford's  Appeal, 
61  Pa.  St.  52;  100  Am.  Dec.  609. 

*  Vogel  V.  Gart,  20  Mo.  App. 
104. 

8  Wall  V.  Wall,  30  Miss.  91;  64  Am. 
Dec.  148. 

*  Williams  v.  Forbes,  114  111.  167. 

*  Cloyes  V.  Cloyes,  36  Hun,  145. 
8  Picot  V.  Sanderson,  1  Dev.  309. 

'  Caldwell  v.  Williams,  1  Bail.  Eq. 
175;  Mclntyre  v.  Hughes,  4  Bibb, 
186.    See  note  to  Anderson  v.  Green, 


7    J.   J.   Marsh.   448;   23  Am.  Dec. 
417. 

8  Marling  v.  Marling,  9  W.  Va.  79; 
27  Am.  Rep.  535.  Whore  a  vohuitary 
conveyance  by  a  father  to  his  «oii  wrs 
destroyed  by  the  father  after  it  liad 
been  delivered,  but  before  ro;,'istratioii 
the  court  ordered  a  new  convoyaiice  to 
the  son:  Tolar  v.  Tolar,  1  Dev.  Eq. 
456;  18  A.m.  Dec.  598. 

*  Watkins  v.  Eamcs,  9  Cush.  537; 
Ives  V.  Sterling,  6  Met.  310;  Mirick  r. 
French,  2  Gray,  420. 


24U:i 


TITLE   TO   PERSONAL    PKOPERTY. 


§  1327 


L48;  23  Am.  Dec. 


18  Johns.  145;  9  Am.  Dec.  101.'  An  instrument  road:  "Thrs 
will  certify  that  I  do  give  to  J.  one  hundred  dollars,  the  money 
to  be  paid  as  soon  as  my  financial  condition  will  allow,  and  if 
I  do  not  live  to  pay  it,  I  wish  it  paid  out  of  my  estate."  JIdd, 
to  be  a  promise  to  make  a  gift,  and  not  tlie  subjectof  an  action: 
Jnlniston  v.  Griest,  85  Ind.  503.  An  engagement  of  marriage 
had  existed  between  the  plaintiff  and  A.  The  latter  was  sub- 
ject to  heart-disease,  and  wiien  ill  hud  frequently  sent  for  the 
plaintiff  to  come  and  take  care  of  him.  On  the  night  before 
tlio  date  of  the  notc^  A  liad  an  unusually  severe  attack,  and  said 
that  if  he  got  out  of  that  he  must  have  some  writing  done;  the 
next  day  ho  made  and  signed  the  note,  and  handed  it  to  the 
plaintiff  in  a  sealed  envelope,  saying  that  there  was  something 
which  would  provide  for  her  in  case  anything  should  liappen 
to  him ;  that  if  they  were  married,  and  he  wanted  it  given  up, 
he  should  expect  her  to  give  it  up,  to  which  she  assented.  The 
plaintiff  had  performed  service  for  A.  field,  that  the  note  was 
intended  by  A  as  a  provision  for  the  plaintiff  by  way  of  gift  out 
of  his  estate,  and  no  action  could  bo  maintained  on  it:  Warren 
v.  Dnrfee,  126  Mass.  338.  A  bill  was  delivered  by  a  father 
shortly  before  his  death  to  his  son,  who  afterwards  took  out 
letters  of  administration,  at  the  same  time  telling  him  to  collect 
it  and  take  care  of  it.  Held,  not  a  gift,  and  the  son  was  requir^^d 
to  account  for  it:  Prickett  v.  Prickett,  20  N.  J.  Eq.  478.  8.  in- 
dorsed on  a  bond  which  he  held  against  Z.,  "  I  request  my 
executors  to  give  this  bond  to  A., "granddaughter  of  theol)ligee 
and  wife  of  the  obligor,  "  for  her  great  kindness  she  has  shown 
to  mo  and  her  grandmother."  After  A  signing  and  sealing  this, 
ho  added,  "This  is  not  to  interfere  with  what  1  will  to  her;  this 
she  i.s  to  have  beside  that."  The  bond  remained  undelivered 
to  A.,  and  in  S.'s  possession  until  his  death.  Held,  that  a  pro- 
spective gift  was  indicated,  and  the  bond  did  not  pass  to  A.: 
Zimmerman  v.  Streeper,  75  Pa.  St.  147.  S.  on  buying  and 
paying  for  thirty  shares  of  railway  stock  directed  the  treasurer 
to  set  it  fiside  in  Y.'s  name,  saying  he,  S..  would  at  some  future 
time  let  him  know  whether  to  deliver  it  to  Y.  The  treasurer 
issued  a  receipt  stating  he  had  received  the  price  from  Y.  At 
S.'s  request  Y.  gave  an  order  directing  the  company  to  transfer 
three  shares  as  S.  might  direct.  No  certiiicate  was  ever  issued. 
By  direction  of  S.  the  dividends  were  paid  to  Y.  In  an  action 
by  Y.'s  executor  to  compel   the  company  to  issue   to   him   a 


'  lilie  court  saying:  "The  note  here 
maiikiested  a  mere  intention  to  give 
tlio  ouu  thousand  dollars.  It  was  ex- 
ecutory, and  the  promisor  had  a  locus 
pu'iiiteutiw.  It  was  an  engagement  to 
give,  and  not  a  gift":    Priester  v. 


Priester,  Pvich.  Eq.  26;  23  Am.  Dec. 
191;  Arnold  v.  Franklin,  3  Brad.  App. 
141;  Hall  v.  Howard,  Rice,  310;  33 
Am.  Dec.  115;  Pearson  v.  Pearson,  7 
Johns.  26. 


g  132S 


PERSONAL  PROPERTY  IN  GENERAL. 


C404 


cortificato  of  the  stock,  it  did  not  appear  how  Y.  camo  into 
possession  of  tho  receipt.     IlrUl,  that  there  was  no  valid  ^rjfi; 
of  the  stock:   Jackson  v.  li.  li.  Co.,  88  N.  Y.  520.     A  owes  |{ 
by  account  wliicli  B  has  directed  A  to  pay  to  C.     Held,  tlmt 
as  a  parol  gift  notice  from  B  to  A  to  pay  it  to  no  one  \,ut 
B  is  a  revocation:    Chandler  v.  Chandler,  02  Ga.  612.     The 
drawer  of  a  check  delivered  it  to  tho  payee,  intending  theichy 
to  give  to  the  payee  tho  fund  on  which  the  check  was  drawn. 
Held,  that  until  tho  check  was  cither  paid  or  accepted  the  gift 
was  incomplete;   and  that  in  tho  absence  of  sucli  payment  or 
acceptance  the  death  of  tho  drawer  operated  as  against  tho 
payee  as  a  revocation  of  the  check:    Shnmona  v.  Cinriinuiii 
Sa rings  Society,  ol  Ohio  St.  457;  27  Am.  Rep.  521.    A  deposited 
in  a  savings  bank  money  in  the  name  of  B,  but  without  her 
knowledge,  "  sub.  to  A,"  on  the  books  of  the  bank  and  on  tlie 
bank  pass-book,  received  the  dividends  and  such  portion  of  the 
principal  as  she  required  for  her  own  use,  and  held  the  pass- 
book always  in  her  possession  until  her  death.    Held,  not  a  f^jft 
inter  vivos;    that  there  was  no  trust  in  favor  of  B,  and  that  if 
there  was,  B  was  trustee  for  the  depositor,  and  could  not  chiini 
or  hold  the  deposit  in  her  own  right:   Northrop  v.  Hale,  Hi  Me. 
66.     A  father  made  an  assignment  under  seal  to  his  daughter 
of  shares  of  corporate  stock.    A  gift  was  intended,  althougli,  on 
its  face,  the  assignment  appeared  to  be  for  value.     Held,  that 
equity  would  not,  after  the  father's  death,  perfect  the  incomplete 
assignment  by  compelling  a  transfer  of  the  stock  on  tlu;  cor- 
porate books:    Baltimore  Retort  and  Fire  Brick  Co.  v.  Mali,  65 
Md.  93;    57  Am.  Rep.  304.     Plaintiff  claimed  title  to  a  lot  of 
coin,  worth  over  seven  thousand  dollars,  by  gift.     The  evidence 
tended  to  show  that  on  the  day  before  the  alleged  donor  died, 
he  told   the  father  to  take  possession  of  the  coin,  which  was 
pointed  out;  that  it  was  a  gift  to  plaintiff;  that  the  father  took 
possession  accordingly,  but  that  before  plaintiff  had  any  furtlicr 
connection  with  the  matter,  the  donor  died.     It  did  not  ajjpear 
that  he  made  the  gift  because  of  a  belief  in  impeudine  death. 
Held,  not  sufficient  to  constitute  a  gift:  Dickeschied  v.  Exchange 
Bank,  28  W.  Va.  340. 

§  1328.  Gifts  on  Condition.  —  If  a  condition  be  an- 
nexed to  a  gift,  it  must  bo  performed  according  to  its 
terms,  or  it  will  fail  and  revert  to  the  donor.*  A  delivery 
of  bonds,  under  a  contract  of  redelivery  "  whenever  called 
for,"  cannot  be  an  absolute  gift.''    So  property  delivered, 


'  Halbertw.  Halbert,  21  Mo.  277. 


3  Selleckv.  SeUeck,  107  111.  389. 


2405 


TITLE  TO  PERSONAL  PUOPEUTY. 


§  1329 


subject  to  be  reclaimed  in  case  tlio  donor  should  lotiirii 
from  abroad,  if  not  to  belong  to  the  person  to  whom  il  is 
dolivered,  is  not  a  gift.'  A  promise,  however,  by  the  donee, 
not  amounting  to  a  condition,  which  he  fails  to  carry  out, 
docs  not  affect  the  gift.'' 

Ilu'strations.  —  A  gave  goods  to  B  on  condition  that  cor- 
tiiiti  of  A's  debts  should  bo  paid  from  their  proceeds.  Part  of 
the  poods  wcro  sold  and  tbo  debts  paid.  Held,  that  otlior 
cnMlitoi's  of  A  had  no  claim  upon  the  remainder,  the  gift  liav- 
iiiff  heon  originally  valid  as  against  creditors:  ll'mjcl  v.  WiMlnj. 
SI  I  I'a.  St.  227.  A  gave  B  ii  maro  with  foal,  stipulating  that  if 
slu'  uliould  prove  to  be  with  foal,  the  colt  should  bo  A's.  li 
sold  tbe  mare  to  C,  not  informing  him  of  the  reservation.  Ihhl^ 
tliat  tliis  was  a  valid  reservation,  and  that  C  had  only  the  ri<rlit 
wlii('li  the  vendee  of  the  bailee  of  goods  would  have,  and  this, 
whether  he  was  or  was  not  informed  of  the  reservation,  and  that 
A  might  recover  tbo  colt  in  an  action  against  C:  Wolf  v.  Eskh^ 
7  Ind.  448. 

§  1329.  Delivery  Essential  to  Gift  —  What  is  and  is 
not  a  Delivery.  — To  make  the  gift  perfect,  it  must  bo  de- 
livered to  the  donee,  and  until  the  delivery  takes  place 
the  donor  may  revoke  it.^  Delivery  of  possession  is  essen- 
tial to  validity  of  a  gift  of  personal  chattels,  whether  it  is 
made  by  parol  or  by  an  instrument  in  writing;  and  if  im- 
mediate delivery  of  possession  does  not  take  place,  it  is 
not  a  gift,  but  a  contract.*  To  constitute  a  delivery  it  is 
essential  that  the  giver  should  part  with  his  control 
over  the  chattel;  and  where  his  intention  is  to  vest  a 
future  interest,  though  he  may  go  through  the  form  of 
delivering  the  chattel,  yet  inasmuch  as  he  retains  his  con- 
trol over  it,  there  is  no  delivery.'^  Whatever  authorizes  the 


'  Waldeu  V.  Dixon,  5  T.  B.  Mou. 
170. 

■'  Duty  V.  Wilson,  47  N.  Y.  580. 

^  -  Schouler  on  Personal  Property, 
sec.  107;  2  Kent's  Com.  438;  Taylor  v. 
Stiii)lc,s  8  R.  I.  170;  5  Am.  Rep.  550; 
Cox  r.  Sprigg,  G  Md.  274;  Noble  v. 
.Smith,  2  Johns.  52;  3  Am.  Dec.  399; 
Liiilork  (".  Tinnen.  2  Car.  Law  Rep. 
271;  «  Am.  Dec.  502;  Collins  w.  Loflf- 
tus,  10  L-iigh,  5;    34   Am.  Dec.   719; 


Little  V.  Willctts,  55  Barl).  125;  .S7 
How.  Pr.  481 ;  Brantley  v.  Caniorou, 
78  Ala.  72;  Roberts  v.  Draper,  18111. 
App.  107;  Marcy  i\  Amazcen,  01  X. 
H,  131;  00  Am.  Rep.  320;  Nutt  r. 
Morse,  142  Mass.  1;  Orrt\  Me(irej:;or, 
43  Hun,  528.  See  Reid  r.  Cokoek,  I 
Nott  k  INIcC.  592;  9  Am.  Dec.  729. 

*  McWiUie  V.  Van  Vachter,  35  Mis3. 
428;  72  Am.  Dec.  127. 

*  Busby  V.  Byrd,  4  Rich.  E(j.  9. 


§  1329 


PERSONAL   PROPERTY   IN   GENERAL. 


2'lUO 


taking  possession  of  llio  gift  will  bo  regiirdcfl  as  a  ^ood 
delivery.'  So  a  gift  of  personalty  may  be  made  l»y  ii 
deed,  without  actual  delivery  of  the  articdcs.'  A  valid  gift 
of  a  debt  due  the  donor  from  the  donee  may  bo  inado 
by  the  donor  by  balancing  the  books  of  account  and  de- 
livering a  receipt  in  full  to  the  donee."  A  valid  gift  may 
be  made  of  a  debt  by  delivery  to  the  donee  of  any  cvi- 
dence  of  the  debt  existing;  if  none,  then  by  a  delivery  vi'  a 
receipt  in  full  thereof.'*  Indorsements  of  part  payments  du 
a  mortgage  with  the  intention  of  making  the  amounts  ex- 
pressed a  gift  to  the  mortgagor  are  an  extinguishment  or 
forgiving  of  the  mortgage  debt  to  that  extent.  Wluio 
the  gift  is  made  to  the  debtor  himself,  and  does  not  admit 
of  a  technical  delivery,  the  intention  of  the  donor  will  not 
be  defeated  on  that  ground.'  Pointing  out  the  articles 
and  saying  "I  give  you  these,"  is  a  good  delivery."  la 
the  case  of  bulky  goods,  giving  the  key  or  other  means  of 
taking  possession;  ^  in  the  case  of  a  savings  bank  deposiD 
delivering  the  bank-book.* 

A  note  or  mortgage  may  pass  as  a  gift  by  delivery  witli- 
out  being  indorsed  or  assigned."  The  death,  of  the  donor 
before  delivery  revokes  the  gift.'"  Ownership  of  personal 
property  is  presumed  from  possession  of  it."  Possession 
of  personal  property  is  not  title.  It  is  prima  facie  cvi- 
denee  of  title,  but  nothing  more,  and  will  not  protect  ono 


'  Blake  v.  Jones,  1  Bail.  Eq.  141;  21 
Am.  Dec.  530;  Sanborn  v.  Crootlhue, 
28  N.  II.  48;  59  Am.  Due.  .398. 

^  Connor  v.  Trawick,  .S7  Ala.  289; 
79  Am.  Dec.  58. 

=«  Gray  v.  Barton,  55  N.  Y.  68;  14 
Am.  Kep.  181. 

*  Gray  v.  Barton,  55  N.  Y.  68;  14 
Am.  Rep.  181. 

^  Green  v.  Langdon,  28  Mich.  221. 

«  Allen  V.  Cowan,  23  N.  Y.  502;  80 
Am.  Dec.  31(5;  PenfieUl  v.  Public 
A*lm'r,  2  E.  D.  Smith,  305. 

'  2  Schouler  on  Personal  Property, 
S8C.  67;  Marsh  v.  Fuller,  18  N.  H.  360. 

8  Prov.  Sav.  Inst.  v.  Taf t,  14  R.  1. 502. 


•Hale  V.  Rice,  124  Mass.  '_'!)•.'; 
Montgomery  r.  Miller,  3  Rodi',  1.14. 

'"  Sessions  v.  Moseley,  4  Cash.  87; 
Grover  v.  Grover,  24  Pick.  '.'(Jl;  'A5 
Am.  Dec.  319. 

"  Fitzhugh  V.  Anderson,  'ill       .t 
M.    289;    3  Am.   Dec.    025; 
Clemons,   18  Conn.  306;  46 
323;  Magee  r.  Scott,  9  Cusl.  .  .'5 

Am.  Dec.  49;  Burke  v.  Siv. 
Allen,  409;  Dick  v.  Cooper,  'J4  J 
217;  64  Am.  Dec.  652;  Orr  /•, 
York,  64  Barb.  106;  Wiseman  r. 
Lynn,  39  Ind.  259;  see  note  to  riiiine 
V.  Seward,  4  Cal.  94,  iu  CO  Am.  Dec. 
601-604. 


13 

St. 


2407 


TITLE   TO   mnSONAL   mOPERTY. 


S  1020 


who  ])ii3's  on  the  faith  of  it  ngainst  the  lioMor  of  tlio  titlo.* 
I'os.sessiou  of  porsoiiul  property  is  only  prima  Jarir  cvi- 
(leuee  of  ownership,  and  never  prevails  a<;ainst  the  true 
owner,  except  with  reference  to  negotiable  instruments 
anil  whatever  comes  under  the  general  denomination  of 
currency.  With  this  exception  the  effect  of  possession  as 
evidence  of  ownership  is  subordinate  to  the  principles 
that  no  one  can  bo  divested  of  his  property  without  his 
consent,  and  that  no  one  can  transfer  a  better  title  than 
ho  has  himself.*  The  fact  that  a  party  was  in  the  actual 
possession  of  a  building  which  was  personal  property, 
making  and  paying  for  repairs  upon  it,  and  olFering  to  soil 
it,  and  exercising  other  acts  of  ownership,  furnishes 
presumptive  evidence  of  ownership  in  him  subject  to  bo 
rebutted  by  the  adverse  claimant.  If  it  is  shown  that 
such  person  was  an  agent  employed  to  superintend  the 
making  of  such  repairs,  then  no  title  could  be  based  upon 
such  acts  of  ownership.^  Where  the  subject  of  a  gift 
remains  with  the  donor,  the  jury  should  bo  allowed  to 
determine  whether  any  argument  against  the  fact  of  de- 
livery that  might  be  adduced  from  that  circumstance  is 
not  explained  by  the  further  fact  that  the  homo  of  the 
donor  and  donee  is  the  same.* 

A  gift  may  be  presumed  from  delivery;  as  whore  a 
lather  furnishes  household  goods  to  his  newly  married  son 
or  daughter,^  or  suffers  his  property,  on  bis  marriage,  to 
go  into  the  possession  of  his  child."  An  executed  gift  of 
furniture  from  a  mother  to  her  son  may  be  inferred  from 
evidence  of  her  declarations  of  such  intent  and  the 
remaining  of  the  son  in  her  house  where  the  furniture 


'  Kctelmm  v.  Brcnnan,  53  !Mis3.  59G. 
•^  Wright  ('.  Solomon,  19  Cal.  04;  79 
Am.  Dec.  197. 
»  Amick  V.  Young,  09  111.  542. 

♦  Siiii.s  (.'.  '    lis,  8  Port.  449;  33  Am. 
Dec.  '293. 

'■>  Hotts  V.  Francis,  30  N.  J.  L.  1.52. 

*  Do  Graticnried  v.  Mitchell,  3  Mc- 


Cord,  500;  15  Am.  Dec.  048;  Martrick 
V.  LinlioUl,  21  Pick.  32r>;  32  Aiii.  Dec. 
205;  Olds  V.  Powell,  7  Ala.  052;  42 
Am.  Dec.  005;  Dugan  v.  (Uttiiigs,  3 
Gill,  1.38;  43  Am.  Deo.  300;  Dauley  u. 
Rector,  10  Ark.  211;  50  Am.  Dec. 
242;  Hillebrant  v.  Brewer,  0  Tex.  45; 
55  Am.  Dec.  757. 


§  1320 


PERSONAL  PROPERTY  IN  GENERAL. 


2408 


Avas,  until  her  death.'  Upon  the  question  of  whether  a 
father  agreed  to  give  a  house  to  a  child,  the  fact  that  the 
taxes  v/ere  assessed  against  the  father  is  not  conclusive 
evidence,  while  the  fact  that  the  child  paid  tho»^  is  a 
significant  circumstance  in  his  favor.'^ 

Illustrations.  —  A  father,  holding  a  mortgage  against  his 
son,  and  intending  to  make  him  a  gift,  executed  and  deJivercsd 
to  liiiu  a  receipt  for  a  portion  of  tlie  debt,  providing  that  tin; 
amount  should  be  indorsed  on  the  mortgage.  Ildd,  a  valid 
gift  of  so  much,  although  the  indorsement  was  never  made; 
Carpenter  v.  Soide,  88  N.  Y.  251;  42  Am.  Rep.  248.  A  father 
procured  a  brand  to  be  recorded  in  the  name  of  his  child, 
and  with  it  branded  certain  cattle,  under  circumstances  that 
showed  he  intended  to  give  them  to  the  child.  Held,  that  there 
was  a  sullicHut  delivery  to  consummate  the  gift:  IllllcfirniU 
V.  Brewer,  6  Tex.  45.  The  intestate,  on  the  eve  of  his  depart- 
ure, told  the  plaintiff  that  he  gave  his  trunk  and  all  in  it  to 
lier,  and  left  town,  but  returned  again,  and  soon  died,  and  it  in 
no  way  appeared  that  he  interfered  with  the  property  afterward. 
Held,  that  this  abandonment  of  the  subject  of  the  gift  to  the 
plaintiff's  control  and  dominion  indicated  that  the  gift  was  ab- 
solute: Penfield  v.  Thayer,  2  E.  D.  Smith,  305.  A  father  deliv- 
ered to  the  husband  of  his  daughter  upon  the  marriage,  without 
expressing  any  qualification,  certain  chattels.  Held,  that  the 
property  vested  in  the  husband,  and  that  the  father  could  not 
treat  it  as  a  loan  of  the  property:  White  v.  Palmer,  1  McMulI.  Cli. 
115.  A  deposited  a  sum  of  money  belonging  to  himself  in  a 
savings  bank,  in  the  name  of  B,  taking  a  deposit-book  in  which 
was  an  entry  that  B  had  deposited  so  much  money.  The  treas- 
urer made  a  similar  entry  in  the  bank-bo'"''"  Held,  that  the  trans- 
action amounted  to  a  complete  gift,  alth  ugh  the  book  remained 
in  the  possession  of  A  until  the  decease  of  B:  Hoivard  v.  Wind- 
ham County  etc.  Bank,  40  Vt.  597.  A  gift  of  an  insurance 
policy,  to  be  exchanged  by  the  donor's  assent  for  one  drawn 
according  to  the  donee's  wishes,  held,  to  be  suihciently  con- 
summated by  delivery  when  the  policy  was  handed  to  the 
donee  and  returned  to  be  forwarded  to  the  insurance  company 
by  the  donor's  order  and  exchanged,  without  objection  on  the 
part  of  the  donor:  Crittenden  v.  Phmnix  Mutual  Ins.  Co..  -11 
Mich.  -142.  A's  indorsing  on  a  note,  "  I  transfer  the  within  note 
as  a  gift  to  B,"  handing  it  to  C,  directing  C  to  give  it  to  B  after 
A's  death,  and  also  informing  B  that  he,  A,  had  given  B  the 


'  Harris  v.  Hopkina»  43  Mich.  272; 
38  Am.  Rep.  180. 


Fairfield  v.  Barbour,  51  Mick.  57. 


2400 


TITLE  TO  PERSONAL  PROPERTY. 


§  1329 


note,  hrJd,  to  constitute  a  valid  gift  inter  vivos:  Meriivefher  v. 
Morrison,  78  Ky.   572.     S.  deposited   in  a  savings  bank  five 
hundred  dollars  bolongitig  to  herself,   declaring  at  the  time 
thai  she  wanted  the  account  to  be  in  trust  for  L.,  the  pass-book 
entry  being  as  "in  account  with  8.,  as  in  trust  for  L."     S.  also 
mule  a  like  deposit,  similarly  in  trust,  for  K.,  who  was  a  sister 
of  h.     Both  1.  and  K.  remained  ignorant  of  the  deposit  until 
S.'s  death,  nine  years  afterwards,  8.  meanwhile  retaining  the 
pass- hooks   and   drawing  one  year's   interest.     Held,  that   8, 
constituted  herself  a  valid  trustee,  and  that  the  gift  was  com- 
plete without  notice  to  the  cestui s:  Martin  v.  Funk,  75  N.  Y. 
lo4;  ol  Am.  Rep.  44G.     D.  deposited  in  a  savings  bank,  in  his 
own  name,  all  he  was  permitted  under  the  rules,  and  then  made 
three  other  deposits  as  trustee,  one  for  his  only  son,  the  others 
for  his  grandchildren,  taking  separate  bank-books,  which  he 
never  delivered,  but  which  were  found  among  his  effects  on  his 
death.     lie  received  the  dividends  during  his  life.     The  rulea 
provided  that  he  must  produce  the  books  to  receive  dividends, 
in  order  that  they  might  be  entered,  and  that  any  depositor 
might  designate  the  person  for  whose   benefit  he  made   the 
deposit  which  should  bind  his  legal  representatives.     The  son 
and  grandchildren  offered  to  prove  that  he  had  told  each  of 
them  that  he  had  made  and  intended  the  deposits  for  them 
after  his  death,  but  he  wanted  to  draw  the  interest  during  his 
life.    Ilrld,  competent  and  to  justify  a  finding  of  a  complete 
and  effectual  trust:   Gerrish  v.  Neio  Bedford  Inst,  for  Sav.,  128 
Muss.  150;  35  Am.  Rep.  3G5.     H.,  an  invalid,  had  collected  and 
kept  apart  in  a  sack  some  two  thousand  dollars  in  gold  coin. 
IIo  gave  it  into  the  hands  of  a  friend  and  neighbor  to  keep  and 
use  it  for  II.'s  daughter,  some  seven  or  eight  years  old.     The 
rceeiver  asked  Mrs.  II.  to  keep  it  for  him  till  he  should  call  or 
send  for  it,  and  she  kept  it  accordingly.     This  was  with  II.'s 
knowledge  and  approval.     H.  died  awa^-  from  home,  and  there- 
after Mrs.  II.  sent  the  sack  and  money  to  the  bailee.     Held,  a 
valid  gift:  Nolen  v.  Harden,  43  Ark.  307;  51  Am.  Rep.  5G3.    A 
fiitlier,  in  his  dwelling-house,  in  the  presence  of  witnesses,  gave 
to  u  son  a  cai:iage,  which  was  locked  up  in  a  carriage-house  on 
the  premises.     Held,  a  sutlicient  delivery  to  constitute  a  com- 
pleted gift:  Fletcher  v.  Fletcher,  55  Vt.  325;  45  Am.  Rep.  027. 
The  testator,  before  his  death,  placed  certain  notes  in  the  pos- 
session of  his  married  daughter  for  safe-keeping.    8uhsequently 
he  told  her  that  she  might  have  the  notes,  but  there  was  no 
formal   delivery.     He   did   not  call  upon   her   afterwards  for 
email  sums  on  account  of  the  notes,  as  he  had  previously  been 
accistomed  to  do.     Held,   that  the  gift  of  the   notes   to   the 
daughte;    was  perfect  and  irrevocable:    Winy  v.  Merchant,  57 
Me.   u63.     A    purchased    bonds,   which    he    caused    to    be 


§1329 


PERSONAL  PROPERTY  IN  GENERAL. 


2410 


registered  in  B's  name,  and  the  income  from  which,  as  it 
accrued,  he  deposited  in  B's  name.  A  declared  at  vari- 
ous times  that  he  wanted  to  create  a  fund  foi-  W  benclit. 
A  retained  possession  of  the  bonds,  and  they  were  found 
among  his  papers  after  his  death.  Held,  that  li  took 
title  thereto  by  gift:  In  re  Toionsend,  5  Demarest,  147.  A 
deposited  money  in  a  savings  bank  in  the  name  of  15,  "sul)- 
ject  to  tlie  order  of  A,"  and  afterwards  temporarily  gave  the 
deposit-book  to  B,  but  immediately  took  it  back  again  to  ])lace 
for  safe-keeping  in  his  safe.  He  afterwards  gave  B  a  cortilicate 
that  the  money  was  his,  and  himself  asserted  no  ownership  over 
it  during  his  life.  Held,  that  there  was  a  completed  gil't  to  U: 
Eastman  v.  Woronoco  Sav.  Banh,  136  Mass.  208.  On  the  day  l»o- 
fore  he  died,  the  plaintiff's  testator  delivered  to  defendant,  with 
the  intention  of  giving  it  to  her,  a  bank  check  drawn  l)y  an- 
other to  testator's  order  and  indorsed  in  blank  by  him.  The 
check  was  not  presented  for  payment  until  after  testator's 
death.  Held,  a  valid  gift:  Burke  v.  Bishop,  27  La.  Ann.  IG"); 
21  Am.  Rep.  567.  M.,  who  had  money  on  deposit  in  a  savings 
bank,  handed  her  bank-book  to  C,  at  the  same  time  saying 
to  him  that  she  gave  the  money  in  that  book  to  11.  and  1.,  and 
requested  him  to  keep  the  book,  and  after  her  decease  divide 
the  money  between  H,  and  I.  Held,  a  valid  gift  to  II.  nnd  I. 
of  the  money  on  deposit:  Hill  v.  Stevenson,  63  Me.  ?>M;  J 8 
Am.  Rep.  231.  One  who  has  just  purchased  under  a  eluittcl 
mortgage  made  by  her  husband,  pointing  out  certain  of  tlie 
artick'.^  to  tl)c  wife,  says  to  her,  "  I  give  you  these  and  all  tiie 
property  I  have  purchased  this  day";  and  such  property  re- 
mains after  the  gift  in  the  house  occupied  by  the  husband  and 
wife  together.  Held,  to  be  in  the  possession  of  the  wite,  and 
not  liable  to  execution  against  the  husband:  Allen  v.  Coiran,  23 
N.  Y.  502;  80  Am.  Dec.  316.  The  plaintiff,  niece  of  an  aged, 
childless,  aTid  rich  widower,  lived  with  him  and  took  care  uf 
him  for  eleven  years,  at  his  request,  and  on  his  promise  to  coni- 
pensate  her.  After  five  years  he  made  his  will  giving  lier  ten 
shares  of  a  certain  stock,  and  informed  her  of  it,  and  obtained 
her  assent  that  it  was  a  satisfactory  provision,  and  at  tlie 
same  time  said  he  should  do  more  for  her  from  time  to  time. 
A  year  later  he  handed  her  the  certificate,  saying,  '*  I  give  this 
to  you,"  and  she  put  and  kept  it  among  her  papers.  A  few 
months  later,  the  company  having  issued  to  him  forty  shares  of 
new  stock  as  his  share  of  surplus  earnings,  he  gave  her  the 
certificate,  saying,  "This  insurance  stock  of  yours  is  good 
stock;  they  give  forty  shares  for  ten;  it  is  only  a  change  of  form, 
that  is  all;  1  paid  nothing  for  it."  She  placed  the  eertiticate 
with  the  other.  Held,  that  the  title  to  both  vested  in  lior: 
Reed  v.  Gopeland,  50  Conn.  472j  47  Am.  Rep.  663.    A  and  B, 


2411 


TITLE   TO    PERSONAL   PROrERTY. 


§  1329 


brotliovs,  buried  two  boxes  of  silver  dollars,  belonging  to  them 
cquiiUy.     A  died,  and  C  was  appointed  his  executor.     Subse- 
quently B  told  C  and  others  tb.at  he  wanted  a  third  brother,  D, 
to  have  his  share  of  the  treasrre  after  B's  death.    Subsecjuently 
C  and  D,  with  the  consent  and  assistance  of  B,  disinterred   tho 
money  during  B's  life,  and  deposited  it  in  a  house  occupied  by 
B  and   C.     Six  days  later  li  died,  and  after  his  burial,  the 
nioncy  was  equally  divided  between  C  and  D.     ILJd,  a   valid 
delivery:  Carradiae  v.  Corradinc,   58  Miss.  280;  o8  Am.  Hep. 
324.    B.  deposited  in  a  savings  bank  certain  inoneys  in  his  own 
name  as  trustee  for  R.     B.  gave  the  bank-book  to  II.,  who  re- 
turned it  to  B.,   in   whese  control  it  remained.     B.  was  child- 
less.   R.  was  his  step-daughter.    It  was  in  evidence  that  li.  was 
a  man  of  few  words,  and  that  he  treated  R.  as  his  daughter. 
In  an  equity  suit  by  R.  against  the  administrator  of  B.,  claim- 
ing the  deposit  as  trust  funds  held  by  B.  for  R.,  held,  tluit  the 
trust  was  completely  constituted.     Held,  further,  that  the  trust 
being  constituted;  the  fact  that  it  was  voluntary  was  no  reason 
for  Hifusing  relief:     Ray  v.  Simmons,  11  R.  I.  266;  23  Am.  Rep. 
447.     A  told  B  that  he  gave  him  the  corn  growing  in  a  certain 
field,  but  there   was   no  further   delivery.     B  afterwards  cut 
and  ciirried  away  the  corn.     H(dd,  that  B  was  a  trespasser: 
N()l)Ic  V.  Sinifh,  2  Johns.   52;  3  Am.  Dec.   3'J9.     A  piano  re- 
mained in  the  house  of  the  donor  and  was  used  by  the  donee, 
who  was  not  a  resident  of  said  house.     Held,  that  there  was 
no  such  delivery  as  to  enable  the  donee  to  n)aintain  an  action 
to  recover   possession  of  a  third  party:    Willeij  v.  Backus,  52 
Iowa,  401.     A  promised  to  give  a  bank  certificate  +o  B.    After- 
wards B  found  the  certificate  in  a  room  usually  occupied  by 
him  and  A.     Held,  that  this  was  not  sufficient  to  show  a  deliv- 
ery of  the  certificate:  Bunch  in  n  y.  Ilughnrt,  28Ind.  449.  Stock 
stood  in  a  testator's  name  on  the  books  of  the  corporation.    The 
certificate  is  found  in  tiie  executor's    possession,   and  the  tes- 
tator gave  him  the  power  of  attorney  lo  receive  and  assign  any 
scrip  or  dividend  due  him  from  the  company.     If  eld,  not  con- 
clui^ive  evidence  of  a  gift  of  the  stock  to  the  executor:  Smith  v. 
B>rnirt,  34  N.  J.  Eq.  219;  35  N.  J.  Eq.  314.     A  father  said  to 
his  son  that  he  might  have  a  certain  colt,  if  he  would  raise  it; 
there  was  other  evidence  tending  to  show  that  the  father  in- 
tend(;d  that  the  son  should  have  the  colt,  but  there  was  no  evi- 
deiicu  of  delivery.     Held,  that  the  title  to  the  colt  did  not  pass: 
Medlork  v,  Poivell,  96  N.  C.  499.     A,  having  indorsed  a  certificate 
of  d('j)0Pit  to  B,  gave  it  to  bis  own  attorney  to  keep  in  his  safe, 
stating  that  "it  was  for  B."     After  A's  death  the  attorney  de- 
livcreJ  the  certificate  to  B.     Held,  that  there  was  no  delivery 
conhti  uting  a  valid  gift  to  B:  Scott  v.  Laumnn,  101  Pa.  St.  593. 
A  fatLer  pointed  out  to  bis  daughter  a  colt,  saying,  "  That  ia 


§  1329 


PERSONAL   PIlOPEllTY    IN    GENERAL. 


2412 


your  property;   I  give  it  to  you,"  but  retained  the  posFos;-ion. 
Held,  thiit  no  titlt;  passed  to  her:  Brewer  v.  Ilarvy,  72  N.  (!. 
17G.     A  Hither  signed  a  release  of  a  note  and  mortgage  executed 
by  his  daugliter,  put  it  with  them  in  his  safe,  and  it  remaiiu'd 
there  until   his  death.     Shortly  after  signing  the  release,  ho 
made  his  will  giving  the  daughter  a  much  larger  amount.    Held, 
that  the  release  did  not  take  effect  for  want  of  delivery:  P.ruiui 
V.  Schuefl,  5i)  Wis.  261;  48  Am.  Rep.  4i39.     A  deposited  luuney 
in  a  savings  bank  in  the  name  of  li  without  any  dechiration  of 
trust  contemporaneously  or  subsequently,  and  not  in  view  of 
death,  and  retained  the  deposit-book  \intil  his  death.     IIel<l,  not 
a  gift  or  trust:  Robinson  v.  litnfi,  72  Me.  140;  39  Am.  Rep.  ,",08, 
A  de})osited  nioney  in  a  savings  bank  in  B's  name,  but  kept  tlio 
pass-book,  in  which  a  condition  that  the  money  should  be  jjuid 
to  li  after  A's  death  was  written.     A  drew  the  interest,  am!  U 
liad  no  knowledge  of  the  deposit  until  after  A's  death.     Jlehl, 
that  A's  executor,  and  not  B,  was  entitled  to  the  deposit:  Shcr- 
vinii  V.  New  liedjonl  Savings  Baid\  lo8Mass.  581.     Alden  r>ur- 
ton,  at  his  death,  left  two  savings-bank  deposit-books,  one  in 
liis  own  name,  the  other  in  that  of  "James  Burton  [his  son], 
order  of  Alden  Burton."     On  the  last  page  of  each  was  an 
order  signed   by  him  to  pay  the  deposit  to  James,  that  in  llie 
former  l)ook  being  absolute,  that  in  the  other  book  directing  the 
payment   to    I'C    made    at    his    death.     Deposits   and   drafts 
were  made  after    the    dates   of   the    orders.     Neither   of  the 
books  was    delivered    to    James,  and    he    had  no   knowJedgo 
of  them.     Held,  not  a  valid  gift:  Bnrton  v.  Brid<ieport  SariiKis 
Bank;  52  Conn.  398;  52  Am.  Rep.  602.     The  plaintiff's  fathrr, 
with  the  intention  of  making  a  gift,  delivered  to  each  of  his 
sons  a  cheek  on  a  savings  bank,  payable  four  da3''s  after  his 
death,  and  also  to  one  of  them  the  bank  pass-book;  he  stated 
at  the  same  time  that  he  should  want  the  control  and  interest 
of  tlu!  money  during  his  life,  and  that  they  would  need   tlie 
books  to  get  the  money,  and  that  he  delivered  them  for  safe- 
keeping; the  checks  did  not  equal  the  fund  on  deposit;   the 
books  were  immediately  deposited  in  the  bank,  and  reniaiiud 
there  until  the  father's  death.     In  an  action  against  the  exec- 
utor, held,    that  the  transaction  was  not  a  gift,  because  there 
was  no  transfer  or  relinquishment  of  control  over  the   iund; 
and  also  held,  that   the   transaction  was  not  a  declaration  of 
trust  or  gift  by  appropriation  or  appointment;  Curry  v.  Puirrrs, 
70  N.  y.  212;  26  Am,  Rep.  577,     The  intestate   placed  bonds 
in  two  envelopes,  indorsing  and  signing  a  memorandum  that  tliey 
belonged  to   his  sons,  W.  and  J.,  in  specified  proportions,  on  liis 
death,  l)ut  that  the  interest  was  owned  and  reserved  by  him  <lur- 
ing  his  life.     He  showed  the  indorsed  packages  to  their  wives, 
stating  that  he  believed  he  had  made  a  valid  disposition  of  the 


2412 


2413 


TITLE    TO    PEllSONAL    PROPERTY. 


§  1330 


posppssion. 
,,  72  N.  V. 

0  eX(HMlt(Ml 

t  rciiiaiiu'd 
I'olouse,  lie 
int.  Held, 
■ry:  nrunn 
ited  inoiioy 
ilariitiou  of 
ill  view  of 
Jlrhl  not 
1.  Rop.  ;'.U8. 
ut  kept  the 
.ikl  be  jiuiil 
rest,  and  1? 
atb.  llrhl, 
posit:  »'^7(ry'- 
Alden  lUir- 
olvS,  one  in 

1  [Ids  son], 
Lch  was  an 

that  in  llic 
.ircctin<^'  the 
and   drafts 
ther   of  tiie 
knowledge 
wrt  HariiKis 
ilT's  father, 
each  of  his 
ff^   after  his 
:;  lie  stated 
lid  interest 
d   need   the 
em  for  safe- 
leposit;   the 
id  remained 
st  the  exec- 
ecause  there 
r  the   fund; 
claration  uf 
ry  V.  Pdic'i-s, 
aced   bonds 
in  that  they 
•tions,  on  his 
by  him  diir- 
their  wives, 
)sitiou  of  the 


Ll 


l)onds.  TTo  then  put  and  kept  them  in  a  Bafo  in  the  house  of  In'a 
son  W.  wdiero  he  himself  lived,  and  in  which  safe  W.  also  kept 
some  papers,  but  of  which  safe  the  intestate  had  practical  control, 
and  they  were  found  there  on  his  death.  lie  cut  oft'  and  used 
the  coui)ons  during  his  lifetime,  and  once  gave  a  bond  from  one 
of  tlu!  packages  to  a  third  person.  He  spoke  of  them  as  the  bonds 
of  tlie  sons.  The  lju  J.  had  no  access  to  the  safe,  and  neither 
son  exercised  any  control  over  the  bonds,  as  against  the  father. 
7/r/(/,  neitlier  a  gift  nor  a  declaration  of  a  trust:  Ymiixf  v. 
Yninuj,  80  N.  Y.  422;  36  Am.  llep.  034.  Prior  to  A's  marriage 
with  B,  and  while  she  was  engaged  to  him,  he  A^as  very  sick, 
and  sent  to  the  bank  for  certain  bonds  there  deposited  in  his 
name,  wdiich  lie  examined  while  lying  in  bed,  and  banded  to  A, 
telling  her  to  put  them  in  a  certain  drawer,  and  subscHjuently 
toUl  lier  to  take  home  with  her  a  similar  looking  ])ackago, 
which  she  did.  Subsequently  the  bonds  were  returned  to  the 
bank,  and  deposited  in  the  name  of  B,  who  afterwards  sold 
one,  and  told  C  that  he  could  realize  on  the  other  bonds,  but 
did  not  want  to,  as  he  had  given  them  to  A.  Held,  that  there 
was  not  suflicient  evidence  to  establish  a  gift  of  the  bonds  to 
A:  Martin  v.  Smith,  25  W.  Va.  579. 

§  1330.  Acceptance,  how  Par  Essential.  —  Acceptance 
is  essential  to  the  validity  of  a  gift,  but  will  usually  be 
presumed  if  the  donee  is  sui  juris.  If  he  is  an  infant,  or 
otherwise  under  disability,  the  law  accepts  it  for  him,  if 
it  is  to  his  advantage.^  The  assent  of  both  parties  is  as 
necessary  to  a  gift  as  to  a  contract.^ 

IiJAJSTRATioNS.  —  H.  made  his  promissory  note,  whereby  one 
year  after  date  he  promised  to  pay  to  the  order  of  the  treasurer 
of  a  theological  seminary  four  thousand  dollars,  with  annual 
interest.  Subjoined  to  the  note  was  a  statement  that  it  was  a 
donation,  the  interest  of  which  was  to  be  applied  to  the  })urchase 
of  books  for  the  library  of  the  seminary.  This  note  was  deliv- 
ered by  the  maker  to  the  chairman  of  the  seminary  library 
conmiittee.  Shortly  thereafter  the  maker  died.  Sulisequent 
to  his  death,  and  before  the  maturity  cf  the  note,  the  trustees 
of  the  seminary  at  a  meeting  accepted  the  note  as  a  donation 
for  the  purpose  therein  named.  Held,  that  the  note  being  with- 
out consideration,  and  not  having  been  accepted  by  the  trustees 
before  the  maker's  death,  that  event  operated  as  a  revocation, 


1  Dc  Levillain  v.  Evans,  39  Cal.  120; 
Howard  *;.  Savings  Baulia,  40  Vt.  5"J7; 
Goss  V.  Singleton,  2  Ilead,  C7. 


^  Peirce  v.   Burroughs,    58   N.   H., 
302. 


§1331 


PERSONAL   PROPERTY    IN   GENERjVL. 


2414 


and  the  estate  of  the  maker  was  not  Hahle  therefor:  In  re  IId~ 
fenstein,  77  Pa.  St.  328;  18-  Am.  Rep.  449. 

§  1331.  Executed  Gift  is  Irrevocable  —  Extent  and 
Effect  of.  —  A  gift  once  perfected  by  dclWery  or  other- 
wise is  irrevocable/  and  divests  the  title  of  the  donor, 
his  administrator,  and  his  creditors.'^  A  gift  to  a  creditor 
by  his  debtor  of  the  equity  of  redemption  in  the  land 
mortgaged  to  secure  the  debts  will  bo  sustained,  if  it 
appears  that  by  relationship  or  otherwise  the  donee  was 
a  proper  object  of  the  donor's  bounty.^  An  executed  trii't 
of  personal  property  from  a  father  to  his  minor  child 
residing  in  his  family  is  valid  and  irrevocable,  althougn 
the  property  continues  in  the  house  occupied  by  the 
family.*  A  gift  of  the  produce  or  interest  of  a  fund  with- 
out  limitation  is  a  gift  of  that  produce  or  interest  forever, 
and  consequently  is  a  gift  of  the  fund  itself.®  So  a  gift  of 
personal  property  for  life  with  an  absolute  power  of  dis- 
posing amounts  to  an  absolute  gift  of  it/ and  a  remainder 
over  to  another  of  what  is  left,  is  void.^  But  a  remainder 
over  after  an  estate  for  life,  with  only  the  use  of  the  prop- 
erty during  that  time,  is  good.* 


^  Parker  v.  Ricks,  8  Jones,  447.  No 
considuiatioii  is  necessary  to  support 
gifts,  iind  if  made  Imna  jide,  and  there 
IS  itmiicdiatu  delivery  of  possession, 
they  arc  good  against  the  world:  Mc- 
Willio  r.  Van  Vacter,  35  Miss.  428;  72 
Am.  Dec.  1'27.  One  who  has  made  a 
donation  int''r  vivos  of  property  to  his 
concui)ine  cannot  on  the  latter  s  death 
recover  the  property  on  the  ground 
that  the  donation  violated  a  prohib- 
itory law,  and  was  opposed  to  good 
morals:  Monattw.  Parker,  .30  La.  Ann. 
585;  31  Am.  Rep.  2'2'J. 

^  Anderson  v.  Belcher,  1  Hill,  246; 
26  Am.  Dec.  174;  Sanborn  v.  Goodhue, 
28  N.  H.  48;  59  Am.  Dec.  398;  Faxon 
V.  Durant,  9  Met.  339. 

*  Hester  v.  Hester,  13  Lea,  189. 

*  Kellogg  w.  Adama,  51  Wis.  138;  37 
Am.  Kep.  815. 


"Garret  r.  Rex,  6  Watts,  14;  31 
Am.  Dec.  447;  Campbell  v.  (iillxrt,  li 
Whart.  77;  Myers  v.  Byerlv,  4.')  l>a. 
St.  368;  84  Am.  Dec.  4!)7;'  Robert's 
Appeal,  59  Pa.  St.  73;  <)8  Am.  Dec, 
312;  Manning  v.  Craig,  4  N.  J.  Eq. 
436;  41  Am.  Dec.  739;  Maiddin^'  /•. 
Scott,  13  Ark.  18;  56  Am.  Dec. 
298. 

"  Thompson  v.  McKisick,  3  lluniph. 
635;  Booker  v.  Booker,  5  lluinph.  ">!;{; 
Deadrick  «.  Armour,  10  Humpli.  "I'.l.'i; 
Bean  v.  Myers,  1  Cold.  228;  Williams 
V.  Jones,  2  Swan,  624;  Davis  r.  Kicii- 
ardson,  10  Yerg.  290;  31  Am.  Dec. 
581. 

'  Davis  V.  Richardson,  10  Yeri.,'.  '290; 
31  Am.  Dec.  581. 

8  Smith  0.  Bell,  1  Mart.  &  Y.  302; 
17  Am.  Dec.  798. 


2415 


TITLE   TO    PERSONAL    PROPERTY. 


§  1332 


Iltaistiiations.  —  A  wealthy  and  chUdlc^s  widow  dopopitcd 
in  a  Havings  bank  two  hundred  and  fifty  dollars  in  her  own 
name,  as  trustee  for  W.,  the  child  of  a  neighlxir  and  friend. 
Hoon  after  she  told  his  parents  that  she  had  deposited  such  sum 
for  their  son,  and  afterwards  spoke  of  it  as  l)eloiigiiig  to  him. 
Hhe  afterward  drew  out  the  money  at  difTerent  times,  and  ap- 
j)lied  it  to  her  own  use,  and  died  leaving  a  will,  in  which  no 
mention  was  made  of  the  deposit  or  of  W.  Held,  that 
the  deposit  was  a  complete  gift,  that  the  depositor  could 
not  revoke  it,  and  that  her  executor  was  liable  to  W.  for 
the  aniount:  Minor  y.  Rogers,  40  Conn.  512;  1(5  Am.  Rep.  69. 
A  father  bought  a  piano  for  his  minor  daughter,  and  two 
months  afterward,  on  her  attaining  majority,  })resented  it  to 
her  formally  and  publicly  at  a  birthday  party  that  he  made  for 
her.  Tlie  daughter  used  it  as  her  own,  and  the  family  treated  it 
as  hers  at  home  for  several  years,  and  until  her  marriage.  After 
that  she  lived  sometimes  at  her  father's  house,  and  sometimes 
away,  but  allowed  the  piano  to  remain  in  his  house,  as  she  had 
no  place  to  keep  it.  Held,  a  valid  gift,  as  against  her  father's 
creditors  attaching  it  by  his  consent  but  without  her  knowl- 
edge: Ross  V.  Draper,  55  Vt.  404;  45  Am.  Rep.  624.  A  (^\ecuted 
an  instrument  transferring  stock  to  liis  wife  and  children),  and 
delivered  the  instrument  to  one  of  them,  with  directiotis  to 
see  that  the  business  was  perfected.  Held,  a  gift  of  the  stock, 
which  therefore  did  not  pass  by  a  subsequent  will:  J)e  Cavvwnt 
V.  Bogert,  36  Hun,  382,  A  father  made  a  parol  gift  of  land 
to  his  son,  and  the  latter  entered  into  possession  and  made  val- 
uable improvements  in  reliance  upon  such  gifts.  Held,  that  the 
gift  was  irrevocable  in  equity,  and  a  conveyance  of  the  land  to 
the  son  would  be  decreed:  Hardesty  v.  Richardson,  41  Md.  617; 
2'2  Am.  Rep.  57;  Freeman  v.  Freeman,  43  N.  Y.  34;  3  Am.  Rep. 
657;  Kurtz  v.  Ilihner,  55  111.  514;  8  Am.  Rep.  665. 

1332.  Gifts  Causa  Mortis — Must  be  Made  in  Expec- 
tation of  Death.  —  A  gift  or  donatio  causa  mortis,  unlike  a 
gift  inter  vivos,  as  we  have  seen,  must  be  made  "  in  such 
a  state  of  illness  or  expectation  of  death  as  would  warrant 
a  supposition  that  the  gift  was  made  in  contemplation  of 
that  event."  ^  The  donor  must  have  good  cause  to  be- 
lieve that  his  decease  is  near;'^  though  this  need  notarise 


'  Edwards  v.  Jones,  1  Mylne  &  C. 
233;  Dutfiuld  v.  Elwes,  1  Bligh.  N.  R., 
f)30;  (iourley  v.  Linseabigler,  51  Pa. 
St.  .345;  Linaenbigler  v.  Gourley,  56 
Pa.  St.  IGG;  94  Am.  Dec.  51;  Parcher 


V.  Saco.   etc.   Savings  Inst.,  78  Me. 
470. 

'^  2  Schouler  on  Personal  Property, 
151;  1  Roper  on  Legacies,  3;  Headley 
V.  Kirby,  18  Pa.  St.  320;  Grattan  v. 


§1332 


PERSONAL   PROPERTY   IN   GENERAL. 


2416 


from  sickness  or  disease  alone;  it  may  arise  from  infirm- 
ity or  old  age,  or  it  may  bo  in  apprehension  of  any 
other  extreme  danger  or  peril .^  An  invalid  testamen- 
tary disposition  will  not  he  supported  as  a  valid  gift  caiif<a 
mortis;*  nor  will  an  ineffectual  gift  inter  vivos  be  sup- 
ported as  a  gift  causa  mortis.^  Gifts  causa  mortis  are  said 
to  be  against  the  policy  of  the  law;  they  are  not  favored 
by  the  courts,  and  they  are  required  to  bo  strictly  proved." 

Illustrations.  —  The  deceased  was  in  his  last  illness  suffer- 
ing from  an  incurable  disease.     He  had  just  made  his  will,  and 
everything  tended  to  show  that  he  was  in  present  apprehension 
of  death.     Held,  that  under  such  circumstances  a  gift  of  his 
liorses,  furniture,  wearing  apparel,  and  watch  was  a  gift  ijio/V/n 
caviid,  and  not  inter  vivos:  Delmottev.  Taylor,  1  Redf.  417.    One, 
about  to  flee  from  home  to  escape  the  rebel  conscription,  deliv- 
ered certain  moneys  and  notes  to  the  donee's  mother,  to  go  to 
him  as  a  gift  in  case  the  donor  should  never  return,  and,  enlist- 
ing ill  the  Union  army,  died  without  returning.     Held,  to  be  u 
valid  gift  causa  viortis:  Gass  v.  Simpson,  4  Cold.  288;  contra, 
Dexheimcr  v.  Gautier,  5  Robt.  216.     P.,  when  in  feeble  health, 
deposited  a  box  of  gold  in  a   bank,  instructing  the  cashier  to 
deliver  it  to   no  one  except  himself,  or  his  (P. 's)  wife,  and  1'. 
delivered  tlie  key  to  his  wife,  informing  her  of  the  deposit  iis 
being  made  for  her,  and  that  she  could  only  get  it  by  applying 
at  the  bank  personally.     Held,  not  to  establish  a  gift  either 
ca^isa  mortis  or  inter  vivos:  Shee(jog  v.  Perkins,  4  Baxt.  273.     A 
wife,  a  few  days  before  her  death,  signed  a  letter  drawn  up  by 
her  husband  addressed  to  a  bank  in  which  she  had  funds,  stat- 
ing that  her  health  was  so  much   worse  that  she  feared  she 
inight  not  be  able  to  draw  for  money  when  needed,  and  request- 
ing that  the  funds  standing  in  her  name  might  be  transferred 
to  that  of  her  husband.     Held,  that  the  funds  did  not  become 
the  property  of  the  husband  by   donatio   causa  mortis:  First 


Appleton,  3  Story,  755;  Thompson  v, 
Thompson,  12  Tex.  327;  Grymes  v. 
Hone,  49  N.  Y.  17;  10  Am.  Rep.  313; 
Irish  V.  Nutting,  47  Barb.  370;  Smith 
V.  Dorsey,  38  Ind.  451;  10  Am.  Kep. 
118;  Taylor  v.  Henry,  48  Md.  550;  30 
Am.  Rep.  486. 

'■'  2  Kent's  Com.  544;  Parish  v.  Stone, 
14  Pick.  198;  25  Am.  Dec.  378;  Craig 
V.  Kittredge,  4G  N.  H.  57;  French  v. 
Raymond,  39  Vt.  623;  Irish  v.  Nut- 
ting, 47  Barb,  370;  Dexheimer  v.  Gau- 
tier,   34    How.   Fr.  472;  Grymea  v. 


Hone,  49  N.  Y.  17;  10  Am.  Rep.  313; 
Michener  v.  Dale,  23  Pa.  St.  59;  Baker 
V.  Williams,  34  Ind.  547;  Virgin  v, 
Gaither,  42  111.  39;  Thompson  v. 
Thompson,  12  Tex.  327. 

*  Mitchel  V.  Smith,  12  Week.  Rep. 
941. 

*  Edwards  v.  Jones,  1  Mylne  &  0. 
226. 

*  Harris  v.  Clark,  3  N.  Y.  93;  51 
Am.  Dec.  352;  Delmotte  v.  Taylor,  1 
Redf.  423;  Kenney  v.  Public  AdmV, 
2Bradf.  321. 


2416 


2417 


TITLE  TO   PERSONAL  PROPERTY. 


§  1333 


oa  infirm- 
)n  of  any 
testamon- 

gift  CCtMSft 

)8  be  sup- 
is  are  saiil 
ot  favored 
ly  proved." 

Inesa  suffer- 
hiswill,  and 
pprehension 
a  gift  of  lus 
a  gift  moiiiti 
if.  417.    One, 
iption,  deliv- 
iher,  to  go  to 
1,  and,  enlist- 
Ileld,  to  be  ti 

288;  contra, 
•eeble  health, 
;he  cashier  to 
)  wife,  and  i*. 
he  deposit  as 

by  applying 

a  gift  either 
r,axt.  273.     A 

drawn  up  by 
,d  funds,  Btat- 
lie  feared  she 

,  and  request- 

,e  transferred 
not  become 

mortis:  First 

lo  Am.  Rep.  313; 
IPa.  St.  59;  Baker 
547;  Virgin  v, 
Thompson  v. 

27. 
12  Week.  Rep. 

1  Mylnfc  &  C. 

13  N.  Y.  93;  51 

l)tte  V.  Taylor,  1 
Public  AdmT, 


Nat.  Banlc  v.  Balcom,  35  Conn.  351.    A  soldier,  while  at  home 
on  furlough,  depoBited  a  certain  sum  with  a  friend,  wlio  gave 
him  a  written  agreement  to  return  the  money  if  the  soldier 
should  return  alive;  but  if  he  should  die,  then  the  nioiicy  was 
to  be  paid  to  the  soldier's  infant  sister.    The  soldier  died,  leav- 
ing the  sister  and  a  brother  the  only  heirs.     Held,  that  the 
brother  could  not  maintain  a  suit  against  his  sister  for  one  half 
the  money  received  by  her:  Baker  v.  Williams,  34  Ind.  5 17.     A 
soldier,  about  to  start  for  the  army,  handed  to  a  friend  two 
promissory  notes  inclosed  in  an  envelope  addressed  to  phiintiff, 
and  told  him  to  deliver  it  to  her,  and  if  he  never  came  back  he 
wanted  her  to  get  the  notes;  that  he  would   rather  she  would 
have  them  than  any  other  person.     They  were  delivered  to  her 
two  days  afterwards.     The  donor  was  in  good  health  at  the 
time,  but  died  of  disease    in    the  army,   about  four  months 
after:     Held,    not   a   good    donatio   mortis   causa:    Guurlcy   v. 
Linscnbigler,  51    Pa.   St.    345.      Plaintiff's    intestate    entered 
the  military  service    during  the   late   war,    and    just    before 
starting   for  the    army  said   to    defendant,   to  whom  lie  had 
loaned  a  gun:  "If  I  never  return  you  may  keep  the  gun  as  a 
present  from  me."     He  never   returned,  but  died  in  the  ser- 
vice.    In  an  action  by  his  administrator  to  recover  the  gun,, 
held,  that   the   facts   did    not   constitute   a   gift    either  inter 
vivos  or  causa  mortis:  Smith  v.  Dorsey,  38  Ind.  451;  10  Arn.. 
Rep.    118.      The    defendant's    testator,    being    about    eighty 
years  of  age  and  in  failing  health,  made  an  absolute  assignment 
of  twenty  shares   of  bank  stock   to   his   granddaughter,  and 
handed  the  assignment  to  his  wife,  with  instructions  to  give 
it  to  her  granddaughter  in  case  of  his  death.      Five  months 
after,  he  died.     Held,!.  That  it  was  a  valid  gift  cfM^sn  mortis; 
and  2.    That  the  court  could  enforce  it,  notwithstanding  the 
fact  that  the  stock  had  not  been  transferred  upon  the  books  of 
the  bank:  Grymes  v.  Hone,  49  N.  Y.  17;  10  Am.  Kep.  813. 

§  1333.  Absolute  only  on  Donor's  Death.  —  A  donatio 
mortis  causa  is  always  made  on  the  condition,  expressed 
or  implied,  that  the  gift  shall  be  absolute  only  in  case  of 
the  donor's  death,  and  shall  therefore  be  revocable  during 
his  lifc.^  And  if  the  donor  recover  from  his  illness,  or  if 
he  resume  the  possession  of  the  gift,  it  will  be  defeated.^ 


iBiifiket?;.  Hassell,  107  U.  S.  602. 

''  Ward  V.  Turner,  1  Smith's  Lead. 
Ca3.  983;  Staniland  v.  Willett,  3  Macn. 
&G.G(j4;  (rrattanw.  Appleton,  3  Story, 
7r)5;  Smith  v.  Downey,  3  Ired.  Eq. 
2C8j  Shirley  v.  Whitehead,  1  Ired. 
152 


Eq.  130;  Parish  v.  Stone;  14  Pick.  198; 
25  Am.  Dec.  378;  Grymes  v.  Hone, 
49  N.  Y.  17;  10  Am.  Rep.  31  :i;  Me- 
Carty  v.  Kearnan,  86  111.  291;  Hoi- 
ley  V.  Adams,  16  Vt.  206;  Priester  v. 
Prieater,    Rich.    Eq.    26;     23    Am.. 


§1334 


PERSONAL  PROPERTY  IN  GENERAL 


2418 


Until  death  tho  title  to  tlio  subject  of  the  gift  remains  in 
the  donor,  and  vests  in  the  donee  only  at  the  time  of  the 
donor's  death,  having  relation  back  to  the  time  of  delivery.' 
If  one  deposit  money  to  be  given  to  a  certain  charity,  if  the 
depositor  never  returns  from  an  intended  journey,  there 
is  not  a  donatio  causa  mortis  if  the  depositor  does  rcturn.- 

§  1334.  What  Property  may  be  Subject  of.  —  All  per- 
sonal  chattels  (but  only  personal  property)  may  be  the  sub- 
ject of  such  agift;"^  also,  choses  in  action;  as,  a  promissory 
note  made  by  a  third  person  payable  to  the  order  of  the 
donor,  or  a  bill  of  exchange,*  or  a  bond,^  or  a  deposit  in 
a  bank,"  a  certificate  of  deposit,'  a  coupon  goveruinciit 
bond,  or  a  certificate  of  stock,"  or  a  life  insurance  policy." 
There  cannot,  it  has  been  held,  be  a  good  donatio  mortis 


Dec.  191;  Woston  v.  Hight,  17  Mu. 
287;  35  Am.  Dec.  250.  But  a  gift 
i)ik'r  rh'OH  of  an  estate  ami  chattels 
ou  it,  itiiulc  by  the  donor  to  his  wife 
wlicn  lie  expected  to  die  soon,  is  not 
for  that  reason  revocable  on  his  recov- 
ery: (riUigan  y;.  Lord,  51  Conn.  502. 
'  Gass  r.  Simpson,  4  Cold.  480. 

*  Ilol)ort3  V.  Draper,  18  111.  App. 
167. 

'  Micliencr  v.  Dale,  23  Pa.  St.  CO; 
Rayiiioiid  v.  Sellick,  10  Conn.  480; 
Welch  V.  Tucker,  3  Biun.  36G;  Meach 
V.  Meach,  24  Vt.  591. 

♦  Austin  y.  Mead,  15  L.  R.  Ch.  Div. 
651;  Veal  v.  Veal,  27  Beav.  303;  Ran- 
kin V.  Weguelin,  27  Beav.  309;  Cald- 
well IK  Renfrew,  33  Vt.  213;  McCon- 
nell  V.  McComiell,  11  Vt.  290;  Turpin 
V.  Tlioiiipson,  2  Met.  (Ky.)421;  Brown 
V.  Brown,  18  Conn.  414,  417;  4G  Am. 
Dec.  o'_'8;  Borneman  v.  Sidlinger,  15 
Me.  420;  33  Am.  Dec.  626;  Wing  v. 
Merchant,  57  Me.  383;  Grover  v. 
Grover,  24  Pick.  261;  35  Am.  Dec. 
319;  Bates  v.  Kempton,  7  Gray,  382; 
Parker  v.  Marston,  27  Me.  19r.-,  Cou- 
tant  V.  Schuyler,  1  Paige,  316;  Harris 
V.  Clark,  2  Barb.  94;  3  N.  Y.  93; 
Champneyw.  Blancha^a,  39  N.  Y.  Ill; 
Jones  V.  Deyer,  16  Ala.  221 ;  Blanchard 
V.  Williamson,  70  111.  647;  Ashbrook 
V.  Ryon,  2  Bush,  228;  92  Am.  Dec. 
481;  Southerland  v.  Southerland,  5 
Bush,  591;  Raadell  v.  Lunt,  51  Me. 


253;  Sessions  v.  Moselcy,  4  Cush.  87; 
Chase  v.  Redding,  13  (Jray,  4IS;  WCs- 
terloo  I'.  De\Vitt,  36  N.  Y.  310;  93  Am. 
Dec.  517;  House  v.  Grant,  4  iiiuij!. 
296;  Stevens  v.  Stevens,  2  lliiii,  470; 
Grymes  v.  Hone,  49  N.  Y.  17;  10  Aui. 
Rep.  317;  Druke  v.  Hcikeri,  til  Cal. 
346;  44  Am.  Rep.  553.  A  protiii.ssory 
note  of  a  third  person,  secured  hy 
mortgage  not  payable  to  bearer,  and 
not  indorsed  so  as  to  transfer  tho  legal 
title,  may  be  the  subject  of  a  divinlio 
causa  moHk,  without  formal  transfer 
of  the  mortgage:  Brown  %k  Brown, 
18  Conn.  410;  40  Ain.  Dec.  IJ'JS. 

^Waring  v.  Edmonds,  11  Md.  424; 
Walsh  w.  Sexton,  55  Barb.  251;  Hack- 
ney V.  Vrooman,  62  Barb.  650;  Leo  v. 
Boak,  11  Gratt.  182.  Qna-n;  in  Brad- 
ley V.  Hunt,  5  Gill  &  J.  54;  -23  Am. 
Dec.  597;  Brown  ?>.  Brown,  18  Conn. 
415;  46  Am.  Dec.  .328. 

^  Kingman  v.  Perkins,  105  Mass. 
Ill;  Foss  V.  Bank,  111  Mass.  'J85; 
Sheedy  v.  Roach,  124  Mass.  472;  '2() 
Am.  Rep.  680;  Davis  v.  Nuy,  125 
Mass.  590;  28  Am.  Rep.  272;  Pitree 
V.  Bank,  129  Mass.  425;  37  Am.  Rep. 
371. 

'  Westerlo  v.  De  Witt,  3(1  N.  Y. 
341;  93  Am.  D<2C.  517;  Chancy  v. 
Basket,  6  Rep.,  N.  S.,  769;  Brooks  i'. 
Brooks,  12  S.  C.  422. 

•*  Walsh  V.  Sexton,  55  Bar)}.  251. 

»  Witt  V,  Amis,  1  Best  &  S.  109. 


2418 


2419 


TITLE  TO  PERSONAL  PROPERTY. 


§  1335 


2mains  in 
me  oi'  tho 
dcUvcry.' 
rity,  it"  tho 
ney,  tlicrc 
les  return. - 

—  All  pcr- 
be tho sub- 
promissory 
rder  of  tho 
deposit  in 
roveriunont 
jice  policy." 
natio  mortis 

,cy,  4  Cash.  87; 
Gray,  41S;  Wi;s- 
.  Y.  a  10;  US  Am. 
Grant,   4  l,;ius. 
jns,  2  llim,  470; 
i.  Y.  17;  10  Am. 
Heikcii,  (il  fill. 
k,     A  pi'i>ini.ssory 
son,   sucurod  liV 
[o  to  bearer,  ami 
transfer  tho  legiil 
iject  of   a  ilowilio 
formal   transfer 
rowu    V.   Brown, 
,.  Poc.  '.Vl^. 
mda,  11  Md.  424; 
Karb.  2')] ;  Hack- 
Barb.  050;  Lee  v. 
Qiiwrc,  ill  Bi'ii'^l- 
&  J.  54;  -J:}  Am. 
Brown,  18  Oonu. 

kins,    105  Mass. 
Ill    Mass.    '.'8o; 


4  Mass.  47 


'2(> 


WIS     V. 


Ney,  120 
Kep.  272;  Tierco 
125;  37  Am.  Key. 

Witt,  3(')  N.  Y. 
517;  Chancy  i'. 
i.,  709;  lirooka  v. 

,  55  Barb.  251. 
Best  &  S.  109. 


causa  of  railroad  stock,'  nor  of  tho  donor's  own  check 
upon  n  banker,^  unless  cashed  in  iiis  lifetime  or  otherwise 
negotiated;^  nor  of  tho  donor's  own  promissory  note.* 
There  cannot  be  a  gift  causa  mortis  of  real  estate.* 

§  1336.  Delivery  of  the  Property  Essential  —  What  is 
and  What  not  a  Valid  Delivery.  —  Delivery  of  tho  thing 
is  essential  to  validity  of  a  gift  causa  mortis.^     If  the  gift 


'  Moore  v.  Moore,  L.  R.  18  Eq.  474. 

•^Tato  V.  Hilbert,  4  Brown  Cli. 
28(5;  Boutta  v.  Ellis,  4DcG.  M.  &  G. 
24'J;  Hewitt  D.  Kaye,  L.  11.  0  Eq.  198. 

^Bontts  V.  Ellis,  4  DoG.  M.  &  G. 
219.  But  see  Rollav.  Pcarce,  L.  R.  5 
Cli.   Div.  7:iO. 

'  Blanchard  v.  Williams,  70  111.  047, 
C52;  Parish  v.  Stone,  14  Pick.  198;  25 
Am.  Dec.  .378;  Priestcr  v.  Priester, 
Rich.  Eq.  20;  23  Am.  Dec.  191; 
Brown  v.  Moore,  3  Head,  071; 
Kaymoml  v,  Sellick,  10  Gonn.  484; 
Smith  V.  Kittridgo,  21  Vt.  238;  Voor- 
hees  V.  WoodhuU,  33  N.  J.  L.  494, 
498;  Hamor  v.  Moore,  8  Ohio  St.  239; 
Starr  v.  Starr,  9  Ohio  St.  74;  Craig  v. 
t'raig,  3  Barb.  Ch.  70;  Dodge  v.  Pond, 
23  N.  Y.  09;  Harris  v.  Clark,  3  N.  Y. 
93;  51  Am.  Dec.  352;  Copp  v.  Sawyer, 
ON.  11.  380;  Flint  v.  Pattee,  .33  N. 
H.  .')20;  00  Am.  Dec.  742;  HoUey  v. 
Ailams,  IG  Vt.  200;  42  Am.  Dec.  508; 
Wilhar  /'.  Smith,  5  Allen,  197;  Carr  v. 
Silloway,  HI  Mass.  20;  Hall  i'.  How- 
ard, Rice,  310;  33  Am.  Dec.  115. 
/I We/' as  to  a  sealed  note:  Mack's  Ap- 
peal, 08  Pa.  St.  231. 

^Meach  r.  Meach,  24  Vt.  591;  Gil- 
more  V.  Whiteaides,  Dud.  (S.  C.)  13; 
31  Am.  Rep.  503. 

•=  Hanson  v.  Millett,  55  Me.  184; 
Camp's  Appeal,  30  Conn.  88;  4  Am. 
Kep.  39;  Darand  v.  Taylor,  52  Iowa, 
503;  Wing  v.  Merchant,  57  Me.  383; 
Taylor  r.  Henry,  48  Md.  550;  30  Am, 
Rep.  -ISO;  Pierce  v.  Bank,  129  Mass. 
4J5;  37  Am.  Rep.  371;  Trorlicht  v. 
Wiizeneckcr,  1  Mo.  App.  482;  Curry 
!•,  Powers,  70  N.  Y.  212;  20  Am.  Rep. 
577;  Dean  v.  Dean,  43  Vt.  337;  Wil- 
cox r.  Matteson,  53  Wis.  23;  40  Am. 
Rep.  754;  Basket  v.  Hassell,  107 
U.  S.  1)02;  Moore  v.  Moore,  L.  R.  IS 
Eq.  471;  Kesch  v.  Senn,  28  Wis.  280; 
Carpenter  i-.  Dodge,  20  Vt.  595;  Froat 


V.  Frost,  33  Vt.  639;  Turner  v.  Brown, 
0  Hun,  .3.33;  Cox  v.  Sprigg,  (i  Md.  274; 
Powell  (.'.  Leonhard,  9  Fla.  li.j'.t;  Case  v. 
Dennison,  9  R.  I,  88;  11  Am.  Rep. 
222;  Egerton  v.  Egerton,  17  N.  J. 
E(i.  419;  Dow  v,  tlould  etc.  Man. 
Co.,  31  Cal.  029;  Smith  v.  Wiggins, 
3  Stew.  221;  Singleton  v.  CoUou,  23 
(Ja.  201;  McKenzie  v.  Downing,  25 
Ga.  009;  Hatch  v.  Atkinson,  50  Me. 
324;  90  Am.  Dec.  404;  Young  r.  Ycmng, 
80  N.  Y.  422;  30  Am.  Rip.  0.34; 
Brown  ?•.  Brown,  18  Conn.  414,417; 
40  Am.  Dee.  328;  Phipps  r.  Hope,  IG 
Ohio  St.  580;  Craig  i\  Craig,  3  Barb. 
Ch.  70;  Ciiamplin  v.  Seeber,  5(»  How. 
Pr.  40;  Waring  v.  Edmonds,  11  Md. 
424;  Bradley  /•.  Hunt,  5  Gill  &  J.  54; 
23  Am.  Dee.  597;  Harris  r.  (Jlark,  3 
N.  Y.  93;  51  Am.  Dec.  .3.32.  In  Miller 
V.  JeflVess,  4  Gratt.  480,  tlie  court  say: 
"  It  is  not  the  possession  of  tlio  <louee, 
but  the  delivery  to  him  by  the  donor, 
which  is  material  in  a  dniuilio  mortis 
cauxd:  tho  delivery  stands  iatlie  place 
of  nuncupation,  and  nmst  aucumpany 
antl  form  a  part  of  the  gift;  an  after- 
ac<|uired  possession  of  the  donee  ia 
nothing,  and  a  previous  and  continu- 
ing possession,  though  by  the  author- 
ity of  the  donor,  is  no  Ixjtter.  The 
donee,  by  being  the  debtor  or  bailee 
or  trustee  of  the  donor,  in  legard  to 
the  subject  of  the  gift,  stands  upon  no 
better  footing  than  if  the  debt  or  duty 
were  owing  from  a  third  person.  A 
debt  or  duty  cannot  be  released  by 
mere  parol,  without  consideration; 
and  where  there  is  nothing  to  sur- 
render by  delivery,  tho  only  result  is, 
that  in  such  a  case  there  cannot  be  a 
do)iitlio  iiiorlk  ettiisa;  and  a  release, 
without  valuable  consideration  there- 
for, must  be  by  testament,  or  by  some 
instrument  of  writing  which  would  be 
effectual  for  the  purpose  i/iJey  vivos." 


g  1335 


PERSONAL  PROPERTY  IN  GENERAL. 


2420 


ia  raaJo  by  parol,  and  the  article  not  delivered,  it  cannot 
be  a  gift  cauaa  mortis,  nor  one  inter  vivos  either.*  Thcro 
cannot  bo  a  valid  gift  cauaa  mortis  without  an  actual 
transfer  of  the  possosdion  of  the  property.''  If  the  inten- 
tion bo  expressed  in  writing,  but  no  delivery  takes  phico, 
even  though  the  document  bo  signed  by  the  donor,  it  will 
bo  ineflectual  as  a  donatio  mortis  causa,  for  in  fact  it  is  a 
legacy,  and  the  writing  will  be  held  a  testamentary  docu- 
ment, and  therefore,  if  not  attested  by  witnesses,  as 
directed  by  tho  wills  statutes,  it  will  be  void  as  a  testa- 
mentary document.^  The  delivery  must  bo  made  during 
the  life  of  the  donor.*  A  good  delivery  is  made  where  a 
chattel  is  actually  given  by  the  donor  into  the  hands  of 
tho  donee,  or  to  some  person  as  the  agent  or  trustee  of  the 
donee.*  So  tho  delivery  of  some  means  of  obtaining  Iho 
chattel  is  sufficient, — as  the  delivery  of  a  key  of  a  box 
is  a  good  delivery  of  the  contents,^  or  a  delivery  of  a 
receipt  for  a  bond  which  is  in  the  hands  of  another  is  a 
good  delivery  of  the  bond.^  Delivery  of  a  chose  in  action 
is  good  by  delivering  some  document  essential  to  its  re- 
covery.** 


'  Tato  V.  Ilbert,  2  Vea.  Jr.  120. 

••*  Daiiiul  V.  Smith,  04  Cal.  34G. 

'  lligdeii  V.  Vallier,    2  Yes.  Sr,  258. 

*  Gilinore  v.  Whitesiiles,    Duel.  Eq. 
14;  .31  Am.  Dec.  503. 

■'  .Siiell'a  Equity,  101 ;  Michnerw.  Dale, 
23  Pa.  8t.  SO;  Sessions  v.  Moaeley,  4 
Cush.  87;  Gasa  v.  Simpson,  4  Cold. 
288;  Borneman  v,  Sedliiiger,  15  Me. 
429;  .33  Am.  Dec.  620;  Martin  v.  Funk. 
75  N.  Y.  134;  31  Am.  Rep.  446; 
Drury  v.  Smith,  1  P.  Wms.  404;  Cald- 
well V.  Renfrew,  33  Vt.  213;  Jones  v. 
Dever,  16  Ala.  221;  Mcaillicuddy  v. 
Cook,  5  Blackf.  178;  Gourley  v.  Lin- 
aenbigler,  51  Pa.  St.  345;  Wells  v. 
Tucker,  5  Binn.  360;  Grymes  v. 
Hone,  49  N.  Y.  17;  10  Am.  Rep.  313; 
Dole  ('.  Lincoln,  31  Me.  422;  Waring 
V.  Edmonds,  11  Md.  424;  McDowells. 
Murdock,  1  Nott  &  McC.  237;  9  Am. 
Dec.  684;  Cloughw.  Cloiigh,  117  Mass. 
83;  Gardner  v.  Merritt,  32  Md.  78;  3 
Am.  Rep.  115.  But  a  delivery  to  an 
agent  of  the  douor,  and  not  an  agent 


of  the  donee,  is  insufBcient:  Farqiiliar- 
son  V.  Cave,  2  Coll.  C.  C.  367;  Walter  o. 
Ford,  74  Mo.  195;  41  Am.  Rci..  ;tl2. 

*  Jones  ?'.  Selby,  Prec.  in  {'luiiic. 
300;  Vandermark  i\  Vanderiiiark,  55 
How.  Pr.  408.  Contra,  Hatch  r.  At- 
kinson, 56  Mo.  .324;  96  Am.  Doc.  4i;4, 
In  Miller  v.  Jeffries,  4  Gratt.  470,  tlie 
court  say:  "A  delivery  is  indisponsa- 
bio  to  the  validity  of  a  donatio  moiik 
catisa.  It  must  be  an  actual  delivery 
of  the  thing  itself,  as  of  a  watch  or  a 
ring;  or  of  tho  means  of  getting  the 
possession  and  enjoyment  of  the  tiling, 
as  of  the  key  of  a  trunk  or  a  ware- 
house in  which  the  subject  of  the  gift 
is  deposited;  or  if  the  thing  bu  iu 
action,  of  tho  instrument  l)y  utsing 
which  the  chose  is  to  be  reduced  into 
possession,  as  a  bond,  or  a  receipt,  or 
tho  like." 

'  Elam  V.  Keen,  4  Leigh,  333;  2G 
Am.  Dec.  322. 

"  Moore  v.  Darton,  4  De  Gex  &  S. 
519. 


2420 


2421 


TITLE  TO  PERSONAL  PROPERTY. 


g  1335 


it  cannot 
t}    Thcro 

an  actual 
the  inten- 
akos  [)Uico, 
nor,  it  will 
fact  it  is  a 
itnry  docu- 
tnosses,    as 
a8  a  testa- 
lado  during 
,de  where  a 
tie  hands  of 
•ustee  of  the 
)taining  tho 
ey  of  a  box 
Blivery  of  a 
another  is  a 
)se  in  action 
ial  to  its  rc- 


cient:  Farquliar- 

C!.367;Waltortf. 
Am.  Kcp.  :U'2. 
'rec.   ill  Cliiino. 

V'anderniark,  55 
Hatch  v.  At- 

HiAiii.  Doc.  41)4. 
.Gratt.  471),  the 
iry  is  indispeu'^a- 
a  donatio  mortis 
actual  delivery 
of  a  watch  or  a 
3  of  getting  the 
lent  of  the  thing, 
link  or  a  ware- 
bjoct  of  the  gift 
he  thing  be  iu 
iinent  by  using 
be  reduced  into 
or  a  receipt,  or 

Leigh,  333;    20 

4  Da  Gcx  &  S. 


Bonds,  notes,  and  mortgages  may  be  tho  subject  of  a 
gift  causa  mortis,  without  a  more  formal  transfer  than 
would  be  required  in  the  case  of  chattels  generally.'  A 
promissory  note  may  pass  as  a  gift  causa  mortis  without 
actual  delivery  to  the  donee,  when  such  note  is  in  tho 
possession  of  a  third  party  as  trustee  for  tho  equitable 
owner.*  A  special  deposit  in  a  bank  may  bo  the  subject 
of  a  valid  gift  causa  mortis,  by  giving  a  check  for  the 
amount  without  a  delivery  of  the  negotiable  certificate  of 
deposit  to  the  donee.'  But  the  delivery  must  be  as  per- 
fect and  complete  as  the  nature  of  the  article  or  property 
admits  of.*  And  the  fact  that  the  property  is  out  of  reach 
of  tho  would-be  donor,  so  that  delivery  is  impossible,  is 
entirely  immaterial;  the  gift  cannot  bo  sustained  in  the 
absence  of  a  delivery,  whether  delivery  is  possible  or  not.' 
The  delivery  of  tho  mortgage  deeds  of  real  estate  will 
constitute  a  valid  donatio  mortis  causa.^  So,  also,  will  the 
delivery  of  a  promissory  note,  payable  to  order,  though 
not  indorsed.^  A  bond  may  be  given  without  any  writ- 
ten assignment.*  And  the  delivery  of  a  certificate  of 
deposit  on  a  life  insurance  company  has  been  held  to  be 


>  Kiff  V.  Weaver,  94  N.  C.  274;  55 
Am.  Rep.  601. 

''  Soutlierlaad  v.  Southerland,  5 
Basil,  5'Jl. 

^  Kurtz  V.  Smither,  1  Demarest, 
39!). 

*  Turner  v.  Brown,  6  Hun,  333; 
Hitch  V.  Davis,  3  Md.  Ch.  2G6;  Brown 
V.  Brown,  18  Conn.  414;  4(>  Am.  Dec. 
328;  Topo  v.  Randolpli,  13  Ala.  214; 
Carridiiie  v.  Collins,  7  Sniodes  &  M. 
428;  Wakey  v.  Blakey,  9  Ala.  391; 
Hillel)raut  v.  Brewer,  6  Tex.  45;  55 
Ain.  Deo.  757;  Powell  v.  Leonard,  9 
Fla.  3.V.);  Hatch  v.  Atkinson,  5G  Me. 
324;  9(i  Am.  Dec.  464,  the  court  say- 
ing: "Although  delivery  of  the  key  of 
a  wareliouse,  or  other  place  of  deposit 
where  cumbrous  articles  are  kept,  may 
constitute  a  suiBcieut  constructive  or 
8ynil)()lical  delivery  of  such  articles,  it 
is  well  settled  that  delivery  of  the  key 
of  a  trunk,  chest,  or  box  in  which 
valuable  articles  are  kept,  which  are 


capable  of  being  taken  into  the  hand, 
and  may  be  delivered  by  being  passed 
from  hand  to  hand,  is  not  a  valid  de- 
livery of  such  articles.  Tlio  rule  is, 
that  the  delivery  must  be  as  perfect 
and  complete  as  the  nature  of  tho  arti- 
cles will  admit  of.  While  a  construc- 
tive delivery  may  be  suflScieiit  for 
large  or  cumbrous  articles,  it  will  not 
be  sufficient  for  small  articles,  capable 
of  a  more  perfect  and  complete  deliv- 
ery." 

» Case  V.  Dennison,  9  R.  I.  88;  11 
Am.  Rep.  222. 

« Duffield  V.  Elwes,  1  Bligh,  N.  S., 
497. 

'  Veal  V.  Veal,  27  Beav.  303;  Cou- 
tant  V.  Schuyler,  1  Paige,  310;  Ash- 
brook  V.  Ryon,  2  Bush,  228;  92  Am. 
Dec.  481;  Westerlo  v.  De  Witt,  36 
N.  Y.  340;  93  Am.  Dec.  517. 

«  Waring  v.  Edmonds,  11  Md.  424; 
Walsh  V.  Sexton,  55  Barb.  251;  Duf- 
field V.  Elwes,  1,  Bligh,  N.  S.,  497. 


J 1335 


PERSONAL  PROPEKTY  IN  GENERAL. 


2422 


I 
I 


effectual,  without  a  written  assignment,  to  transfer  tlie 
deposit  itself  to  the  douee,  as  a  gift  causa  mortis}  A 
deposit  in  a  savings  bank  may  be  the  subject  of  a  valid 
gift  causa  mortis,  and  such  gift  may  be  proved  by  the 
delivery  of  the  bank  or  pass  book  to  the  donee,  accom- 
panied by  an  assignment;'^  or  it  may  be  proved  by  the 
simple  delivery  of  the  pass-book,  without  any  assign- 
ment.^ A  bond  or  sealed  note  delivered  as  a  gift  causa 
mortis  will  not  be  transferred  to  the  donee  so  as  to  vest 
title  in  him,  unless  it  is  properly  transferred  by  indorse- 
ment also;  and  whrre  the  gift  was  made  simply  by  a 
transfer  of  possession,  its  value  may  be  recovered  at  law 
in  an  action  of  trover  by  the  personal  reiiresentatives  of 
the  donor.^  A  draft  does  not  operate  as  an  assignment 
until  accepted,  although  drawn  for  a  specific  sum  and 
against  funds  of  the  drawer  in  the  hands  of  the  drawee. 
Th-  delivery  of  such  draft  unaccepted  is  therefore  inop- 
era'^ivo  as  a  gift  in  view  of  death;  and  the  draft  cannot 
he  enforced  against  the  personal  representatives  of  the 
drawer.^  And  the  delivery  must  be  absolute,  —  the  owner 
imust  part  with  all  dominion  over  the  gift.* 


1  Westerlo  v.  De  Witt,  36  N.  Y.  .340; 
99  Am.  Dec.  517. 

^  Kingman  v.  Perkins,  105  JIass. 
Ill;  Foss  ?'.  Lowell  Five  Cents  Savings 
Bank,  111  Mass.  2?J5;  Sheedy  y.  Roach, 
124  i\lass.  472;  2G  Am.  Rep.  680;  Da- 
vis V.  Ney,  125  Mass.  590;  28  Am. 
Rep.  272. 

*  Piurce  o.  Boston  Five  Cents  Sav- 
ings Bank,  129  Mass.  425;  37  Am.  Rep. 
371;  Turner  v.  Boston  etc.  Savings 
Bank,  i;.'9  Mass.  425;  Hill  v.  Steven- 
son,  03  Me.  .304;  18  Am.  Rep.  231 ;  Til- 
linghasc  v.  Wheaton,  8  R.  I.  530;  5 
Am.  Rep.  021;  9-i  Am.  Dec.  126; 
Camp'a  Appeal,  36  Conn.  88;  4  Am. 
Rep.  39;  Penfield  v.  Thayer,  2  .'^-.  D. 
Smith,  305.  Contra,  Ashi)rouh  v. 
Ryon,  2  Bush,  228;  92  Am.  Dec. 
4g\. 

*  Overton  ?>.  Sawyer,  7  Jones,  6; 
Ti  Am.  Dec.  444. 


»  Harris  v.  Clark,  3  N.  Y.  93;  51 
Am.  Dec.  352. 

6  In  Hawkins  v.  Blewitt,  2  Esp.  003, 
A,  being  in  his  last  illness,  ordeicil  a 
box  containing  wearing  apparel  to  lio 
carried  to  the  defendant's  liou>)(^,  to  be 
delivered  to  the  defendant,  giviug  no 
further  directions  respoctin;,'  it.  ();i 
the  next  day  the  defendant  hidui^ljt 
the  key  of  the  box  to  A,  who  ilcsired 
it  to  be  tali-cii  ijuck,  say  in '^  lie  .slioulJ 
want  a  pair  of  brecclicj  out  of  it. 
This  was  held  not  to  bo  a  good  doiiatiG 
mortis  causd,  and  the  judge  n.iid:  "la 
the  case  of  a  donatio  mortii  c((>w(/,  pos- 
session mu.st  be  immediately  given; 
and  also,  in  parting  with  the  po  ^session, 
it  is  necessary  that  the  owner  shuuld 

part  with  the  dominion  over  it 

It  seems  rather  to  have  been  left  in  tlio 
defendant's  care  for  safe  custfuly,  and 
was  so  considered  by  herself." 


2422 


2423 


TITLE  TO  PERSONAL   PROPERTY. 


§1335 


,ransfer  tlie 
mortis}  A 
t  of  a  valid 
)ved  by  the 
mee,  accom- 
oved  by  the 
any  assign- 
a  gift  causa 
so  as  to  vest 

by  indorse- 
simply  by  a 
vered  at  law 
sentatives  of 

assignment 
fie  sum  and 

the  drawee, 
erefore  inop- 
draft  cannot 
,atives  of  the 
,  —  tho  owner 


3  N.  Y.  93;  51 

ewitt,  2  Esp.  0G3, 
'^illness,  orilcrcil  a 
iiig  apparel  to  lie 
lauf  a  Iiousfs  to  be 
uiulant,  giviiig  no 
espoctin;,'  it.  On 
ofendaiit  lirouglit 
to  A,  who  (U'sirt'd 
sayiti'j'  lie  sliouM 

3CCllLj    out    111'    it. 

I  1)0  a  gao'l  (loiiotir, 
i  juilgo  *ii'l-  "I" 
I  mortii  fin.i'i,  pos- 
iimeiUati'ly  givt"; 
nththopo-si!>^:^i"i>, 
the  owner  shoulil 

ion  over  it 

ive  heeu  left  in  tlio 
safe  custfjily,  and 
y  heraolt." 


Illustratioxs.  —  On  a  loan,  the  borrower  had   given  the 
lender  a  receipt  in  the  following  terms:  "  Received  of  Miss  D. 
five  hundred  pounds,  to  bear  interest  at  five  per  cent  per  an- 
num."    Held,  that  a  delivery  of  the  receipt  to  an  agent  of  tho 
borrower  by  the  creditor  on  her  death-bed,  stating  tluit  she 
wished  the  debt  to  be  canceled,  was  a  good  donatio  viortls  causa: 
Moore  V.  Darton,  4  De  Gex  &  S.  519.     The  key  of  a  room  con- 
taining furniture  was  delivered  to  the  donee.     IFcld,  ii  good 
gift  causa  mortis  of  the  furniture:  Smith  v.  Smith,  Strange,  955. 
At  the  direction  of  her  aunt,  four  days  before  her  death,  tho 
plaintiff  took  the  aunt's  savings-bank  book,  and  tho  aunt  said: 
"  Keep  this,  and  if  anything  happens  to  me,  bury  nio  decently, 
and  put  a  head-stone  over  me,  and  pay  my  debts,  and  anything 
that  is  left  is  yours."     Held,  a  valid  gift,  coupled  with  tho 
trust:   Curtis  y.  Portland  Savings  Bank,  77  Me.    151;  52   Am. 
Rep.   750.     A  father  bouglit  a  ticket  in  a  lottery  wliich    he 
declared  he  gave  to  his  daughter,  and  wrote  her  name  upon  it. 
After  tho  ticket  had  drawn  a  prize  he  declared  that  In.  had 
given  the  ticket  to  his  child,  and  that  the  prize-money  was  liers: 
Held,  a  valid  gift  causa  mortis:  Grangiac  v.   Arden,  10  Jolnis. 
292.     A.  held  certain  notes  of  D.,  who  washer  grandson.     One 
night,  shortly  before  her  death,  she  destroyed  the  notes,  and 
subsequently  made  frequent  declarations  to  the  effect  tliat  she 
did  not  wish  D.  to  pay  them  after  her  death.     Hc^d,  a  valid 
donatio  mortis  causa:  Darland  v.  Taylor,  52  Iowa,  50.'];  l]~>  Am. 
Rep.   285.     On  a  slate  by  the  beds"  '  •  of  E.,  wlio  was  found 
dead,  was,  in  her  writing,  and  signed        her,  tho  following;  "I 
wish  Dr.  L.  to  take  possession  of  all,  botii  personal,  real,  and 
mixed.    I  am  so  sick  I  believe  I  shall  die.    Look  in  valise."     In 
a  valise  was  found  a  memorandum  written  by  her,  directing 
Dr.  L.  to  take  ail  of  her  property.     Held,  a  valid  gift   ciumi 
mortis  of  personal  property:  Ellis  v.  Seeor,  SI   Mich.    i'5;  IS 
Am.  Rep.  178.     A  person  at  sea,  being  seized  with  cliokra,  sent 
for  the  purser,  and  in  his  presence,  holding  in  liis  hand  a  liagof 
gold-dust  ar.d  somo  pieces  of  coin,  requested  a  sailor  in  attend- 
ance to  hand  it  to  the  purser,  which  was  done.     The   latter 
inquired  who    ho  wished   to  have   his    effects,  to  wliic  h    tho 
former  rei)lied,  his  sister  and  brother  residing  in  IMiiladi'lphia. 
The  purser  testified  that  the  gold-dust  and   coin  were  <;Iv>mi  to 
him  in  presence  of  tho  donor  and  at  his  request,  and  he  wished 
liis  brother  and  sister  to  have  it.     About  six  liours  a  Hit  tiie 
occurrence  the  sick  man  died  of  the  said  disease.     Jlel'K  that 
this  was  a  donatio  causa  mortis  in  favor  of  the  brother  and  sister: 
Mirhcuer  v.  Dale,  23  I*a.  St.  (iO.     C,  about  a  month  before  her 
death,  deposited  a  sum  of  money  with  R.,and  took  his  receipt 
therefor.     On  the  morning  of  the  day  of  her  death  she  h;i:i(led 
the  receipt  to  B.  at  her  bedside,  saying  that  she  gave  that  to 


§1335 


PERSONAL  PROPERTY  IN   GENERAL. 


2424 


him ;  she  also  mentioned  the  amount  at  the  foot  of  the  paper, 
saying  she  gave  that  amount.  Held,  that  the  transaction 
amounted  to  a  vaUd  gift  mortis  causa:  Champney  v.  Blanchard, 
39  N.  Y.  111.  A  person  in  his  last  illness  executed  a  writing,  at- 
tested l^y  two  subscribing  witnesses,  in  which  the  names  of  several 
of  his  children  and  grandchildren  were  written,  to  whom  ho  gave 
his  estate,  consisting  principally  of  money  and  cash  notes,  with  the 
amount  each  one  was  to  have  set  opposite  his  or  her  name,  and 
delivered  the  paper  to  his  two  sons  to  keep,  and  the  property 
also,  and  charged  them  with  the  execution  of  the  trust.  Held, 
that  this  was  a  valid  donatio  causa  mortis:  Kemper  v.  Kemper^ 
1  Duvall,  401.  A  husband,  a  few  days  before  his  death,  and  in 
his  last  sickness,  destroyed  a  bond  executed  to  him  by  his  wife 
on  account  of  her  separate  estate,  declaring  his  intention  to 
forgive  the  debt,  i/e^c^,  to  be  a  discharge  of  the  debt:  Gardner 
v.  Gardner,  22  Wend.  526;  34  Am.  Dec.  340.  An  administratrix, 
the  -klow  of  the  deceased,  received  from  her  husband  a  paper 
just  before  his  death,  with  the  instruction:  "You  will  need 
some  money;  get  the  one  thousand  dollars  from  A.  Pay  sick- 
ness and  burial  expenses,  and  keep  the  rest  for  yourself."  After 
the  husband's  death  the  widow  took  the  paper  to  A,  received 
the  money,  and  paid  expenses.  Held,  that  the  balance  left  was 
a  gift  to  her,  although  she  did  not  have  the  money  during 
deceased's  lifetime:  Lire  Cronan,  Myrick's  Probate,  72.  A  tes- 
tator before  his  death  delivered  to  one  of  the  executors  named 
in  his  Avill  a  sum  of  money  to  be  distributed  among  his  servants, 
for  whom  he  said  that  he  had  neglected  to  provide.  Tlie  exec- 
utor notified  some  of  the  servants  of  the  gifts  to  them,  and  paid 
them  after  the  decease  of  the  testator.  Held,  a  valid  donatio 
causa,  mortis:  In  re  Barclay,  11  Phila.  123.  A  delivery  by  A  to 
B  of  the  key  of  a  desk  containing  evidence  as  to  notes  due  A, 
and  of  a  letter  from  A's  agent,  the  custodian  of  the  notes,  describ- 
ing thuni,  coupled  with  an  expression  of  the  donor's  intention 
to  give  the  notes  to  B,  held,  to  make  a  gift  causa  mortis: 
Stephon^on  v.  King,  81  Ky.  425;  50  Am.  Rep.  172.  A  woman 
eighty  years  old  agreed  to  convey  land  to  a  nephew,  he  to  pay 
as  stipulated.  Three  years  afterwards,  she,  being  sick  and 
expecting  to  die,  had  a  deed  prepared,  and  requested  that  it  b(3 
delivered  to  him  after  her  death,  and  being  annoyed  by  the 
importunities  of  other  nephews  and  nieces,  the  deed  at  her 
request  was  delivered  to  him.  She  recovered.  Held,  j:  gift 
'n.usa  mortis,  and  not  inter  vivos,  and  therefore  revocable  by  her: 
Ctirtissv.  Barrus,  38  Hun,  165.  The  donor  told  A  that  certain 
notes,  which  she  pointed  at  in  a  basket,  were  for  B,  and  certahi 
others  for  C,  and  directed  A  to  take  them  to  D  for  safe-keeping, 
and  said  that  these  notes  and  the  will  would  make  the  children 
all  equal.     Held,  a  valid  gift  causa  mortis:  ShacklcJ'ord  v.  Brown, 


2424 


2425 


TITLE  TO  PERSONAL  PROPERTY. 


§1335 


f  the  paper, 
transaction 

BlancJiard, 
i  writing,  at- 
cs  of  several 
lom  he  gave 
)tes,  with  the 
r  name,  and 
the  propiirty 
rust.     Held, 
■  V.  Kemper, 
eath,  and  in 
1  by  his  wife 
intention  to 
ibt:   Gardner 
iiiinistratrix, 
)and  a  paper 
)U  will  need 
..     Pay  sick- 
•self."    After 
)  A,  received 
ance  left  was 
oney   during 
3,  72.    A  tes- 
utors  named 
bis  servants, 
The  exec- 
m,  and  paid 
alid  domdio 
very  by  A  to 
notes  due  A, 
otes,  deserib- 
8  inteution 
ausa    mortis: 
A  woman 
w,  he  to  pay 
sick  and 
ed  that  it  be 
oyed  by  the 
deed  at  her 
Held,   ii  gift 
able  by  her: 
that  certain 
and  certain 
afe-kecping, 
the  children 
rd  V.  L'rown, 


89  Mo.  546.  The  delivery  was  made  1  y  the  donor  to  the  donee  of 
a  key  of  a  trunk  containing  money  and  government  bonds.  Held, 
not  a  valid  delivery  of  the  money  and  bonds:  Hatch  v.  Atkinson, 
56  Mc.  324;  96  Am.  Dec.  464.  The  donor  had  certain  bonds  and 
notes  brought  out  of  his  chest  and  laid  on  his  bed.  He  then 
caused  them  to  be  sealed  up  in  packages,  the  amount  of  the 
contents  written  on  them,  with  a  statement,  "For  Mrs.  C,"  "For 
Miss  C."  This  being  done,  he  directed  that  tliey  should  be 
returned  to  the  chest;  that  the  chest  should  be  locked,  the  keys 
sealed  up,  and  the  keys  to  be  delivered  to  one  J.  after  his  de- 
cease. Ileld,  that  the  gift  was  invalid  for  want  of  delivery: 
Bun  V.  Markham,  7  Taunt.  224.  The  donor  told  one  A  to 
tak  I  lie  keys  of  his  dressing-case,  and  box  containing  her  watch 
and  trinkets,  and  immediately  on  her  death  to  deliver  the  watch 
and  trinkets  to  the  plaintiff.  A  acted  accordingly.  Held,  that 
the  gift  was  incomplete  for  want  of  delivery:  Powell  v.  Hellicar, 
26  Beav.  'J-'  A,  who  held  a  note  of  C  to  him,  indorsed  it  to 
B,  stating  tl..  h^  wished  her,  B,  to  have  and  collect  it.  There 
was  no  delivery  of  the  note.  Held,  not  a  good  gift  causa  mortis: 
Weston  v.  Hirjhf,  17  Me.  289;  35  Am.  Dec.  250.  A  woman,  who 
had  Mor.oy  on  deposit  in  the  savings  bank,  during  her  last  sick- 
ness io\d  0  girl  wi^o  lived  with  her,  and  had  the  custody  of  her 
bank-book,  to  get  t.<e  book,  which  being  done,  she  said,  "  Take 
that  and  keep  it  and  lock  it  up."  The  girl  retained  the  book. 
Held,  not  suilicient  to  establish  a  gift  causa  mortis:  Ficro  v. 
Fiero,  5  Thomp.  &  C.  151;  2  Hun,  600.  S.,  being  ill,  gave  C.  a 
written  order  on  a  savings  bank  for  the  payment  to  C.  of  a  de- 
posit standing  in  the  bank  in  the  name  of  S.  A  memorandum 
was  subjoined  that  "the  book  must  be  sent  with  this  order,"  the 
book  jeing  in  the  possession  of  G.  S.  at  the  same  time  gave  C 
a  wriiton  order  for  it.  C.  presented  the  order  for  the  money  to 
the  ba  ik  without  the  book,  and  the  bank  refused  to  pay  it  with- 
out the  production  of  the  book.  S.  died  three  mouths  later,  at 
a  diflevent  place,  but  whether  of  the  same  disease  did  not  ap- 
pear. In  an  action  by  C.  against  the  administrator  of  H.  for 
the  deposit,  it  not  appearing  that  C.  ever  had  the  Ijook,  er  ever 
tried  to  get  it,  held,  there  could  bo  no  recovery:  Conscr  v.  SnoiU' 
den,  54  Md.  175;  39  Am.  Rep.  368.  A  father,  a!  out  a  week 
before  bis  death,  put  a  package  of  money  in  the  liands  of  his  son 
to  take  care  of  it  for  him,  and  some  three  days  bLtbro  his  death 
told  his  son  in  case  he  should  not  recover  to  pay  the  funeral 
expenses  and  divide  the  balance  between  himself  and  certain 
of  liis  brothers  and  sisters.  Held,  not  a  gift:  McCord  v. 
McCnrd,  77  Mo.  Ib6;  46  Am.  Rep.  9.  J.  IL,  ])eini;  in  feeble 
health,  made  a  deposit  in  a  savings  bank  to  the  cri'dit  of  him- 
self and  mother,  and  the  survivor  of  them,  subject  to  the  ordcir 
of  either.    He  subsequently  went  to  the  bank,  accompojoied  Uy 


§  1335 


PEESONAL  PBOPEKTY   IN   GENERAL. 


2426 


his  sister,  and  had  the  name  of  the  mother  erased,  and  that  of 
the  sister  substituted,  so  that  the  account  was  to  the  credit  of 
J.  H.  and  his  sister,  "  and  the  survivor  of  them,  subject  to  the 
ordci  of  either."  This  money  constituted  nearly  all  his  prop- 
erty. After  this  he  drew  out  fifty  dollars.  He  kept  possession 
of  the  bank-book  until  his  death.  After  the  deposit,  ho  made  a 
will,  dividing  his  property  among  his  relatives,  to  carry  out  the 
provisions  of  which  would  require  the  sum  deposited.  Ifdd, 
that  there  was  no  gift  causa  mortis  of  the  deposit.  Nor  was 
there  suf  cicnt  to  establish  a  trust  therein  in  favor  of  the  sister: 
Taylor  v.  Hniry,  48  Md.  550;  30  Am.  Rep.  486.  A  certificate 
of  deposit  as  follows:  "  Evansville  National  Bank,  Evansville, 
Ind.,  vSept.  8,  1875.  H.  M.  Chancy  has  deposited  in  tiiis  bank 
$23,514.70,  payable  in  current  funds  to  the  order  of  himself,  on 
the  surrender  of  this  certificate  properly  indorsed,  with  interest 
at  the  rato  of  six  por  cent  per  annran  if  left  for  six  months. 
Henry  Reis,  Cas'  'or,"  —  held,  to  be  the  subject  of  a  valid  gift, 
if  properly  indorsed  and  delivered  to  the  donee.  But  whcio  it 
was  indorsed,  "  Pay  to  Martin  Basket,  of  Henderson,  Ky.  No 
one  else;  then  not  till  my  death.  My  life  seems  to  bo  uncertain; 
I  may  live  through  this  spell.  Then  I  will  attend  to  it  myself, 
H.  M.  Clianey,"  and  delivered  to  the  donee,  held,  not  valid  as  a 
donatio  causa  mortis,  because  to  take  elTect  only  upon  the  death 
of  th.  donor:  Basket  v.  Hassell,  107  U.  S.  G02.  B  made  a  de- 
posit in  a  savings  bank  in  the  name  of  C,  his  grandchild,  Init 
payable  to  liimself,  and  took  a  deposit-book,  which  ho  kept  and 
controlled,  lie  drew  out  more  than  half  the  deposit,  and  after- 
wards had  tiio  first  entry  modified  so  that  the  deposit  was  pay- 
able to  him  during  his  life,  and  after  his  death  to  C.  In  his 
will  previously  made  be  confirmed  all  gifts  made  or  to  ho.  made 
to  his  child!  en.  There  was  no  other  evidence  of  any  trust.  Tlie 
deposit  could  not  bo  withdrawn  without  the  production  of  the 
book.  C  had  no  knowledge  of  the  transaction.  Held,  neither 
a  gift  nor  a  trust:  Pope  v.  Burlinrfton  Savings  BanJi,  56  Vt.  284; 
48  Am.  Rep.  781.  While  on  his  death-bed,  and  about  throe 
hours  before  his  death,  W.  told  the  attending  nurse  th;it  his 
pocket-book  was  "under  the  bed,  just  under  his  shoulders,"  and 
requested  her  to  take  it  and  give  it  to  his  wife,  when  she  eame, 
with  the  money  and  papers  contained  in  it.  Several  hours  after 
his  death,  the  nurse,  for  the  first  time,  took  the  pocket-book,  and 
gave  it  to  another  person,  with  directions  to  give  it  to  tlic  widow 
if  she  came,  or  send  it  to  her  if  she  did  not  come.  Ildd,  not  a 
valid  gift:  Wilcox  v.  Matteson,  53  Wis.  23;  40  Am.  R(^p.  7-^4. 
S.,  in  anticipation  of  death,  said  that  she  gave  her  uncle  her 
money,  and  that  it  was  all  his.  She  died  soon  after.  The 
uncle  had  from  time  to  time  received  money  from  her,  depo-itcd 
it  in  a  savings  bank,  and  retained  the  bank-book  in  his  posses- 


2427 


TITLE  TO  PERSONAL  PROPERTY. 


§  1336 


gion.     ITcld,  that  there  was  not  a  valid  dnnafin  mortis  causa,  as 
there  was  no  evidence  of  any  delivery  of  the  book  or  nioiiey  to 
the  uncle  at  the  time  the  gift  was  made:»  Frenrli.  v.  Raymond, 
39  Vt.  G23.    Tlio  deceased,  in  his  last  illness,  oxprest-ed  a  desire 
to  his  daughter  that  she  sliould  have  his  carriage  and  horses; 
but  it  did  not  appear  that  there  had  been  any  actual  change  of 
possession,  though  they  were  used  by  her  afterwards,  and  the 
coachman  received  his  orders  from  her.     //(;/(/,  not  such  a  de- 
livery by  the  donor  to  the  donee  as  was  necessary  to  complete 
the  gift:    Ddmotte  v.  Taylor,  1  Redf.  417.     H.,  being  iiifornied 
of  his  approaching  death,  told  his  attendants  that  ho  liud  six- 
teen hundred  dollars  in  bank,  nine  hundred  and  fifty  dollars 
under  his  })illow  and  in  his  coat-pocket,  and  several  hundred 
dollars  in  the  hands  of  different  persons;    that  he  (Icsired  two 
hundred  dollars  to  go  to  a  niece,  and  one  hundred  dollars  to  an 
old  servant,  and  the  rest  to  his  wife.     One  of  the  attendants 
then  found  and  counted  the  nine  hundred  and  fifty  dollars,  to 
the  knowledge  of  S.;  but  he  gave  no  further  directions.     Held, 
not  a  gift:  Newton  v.  Snyder,  44  Ark.  42;  51  Am.  Uep.  587. 
The  deceased  gave  his  daughter  the  furniture  in  his  rooms,  the 
keys  of  which  were  given  her  by  her  husband,  and  sIk;  subse- 
quently removed  the  furniture  to  her  residence,  thougli  nothing 
else  appeared  showing  she  took  possession  of  it  with  the  donor's 
knowledge  and  assent.    Held,  not  sufficient  to  consummate  the 
gift:  Dehnotte  v.  Taylor,  1  Redf.  417.     The  intestate,  who  had 
a  deposit  in  a  savings  bank  in  her  name,  but  had  never  had 
the  bank-book  in  her  possession,  said  to  defendant,  in  lier  last 
sickness,  that  she  wanted  him  to  get  the  book  and  divide  the 
money  among  himself  and  two  others.     Held,  not  a  valid  gift 
for  want  of  delivery:  Case  v.  Dcnnison,  9  R.  I.  88;  11  Am.  Rep. 
222.    A  man,  just  before  dying,  called  those  of  his  cliildren  who 
were  near  him,  and  said  to  one  of  them:  "My  notes  are  in  a 
little  box  on  the  bureau  there;  I  want  you  to  take  them  and 
divide  them  equally  among  you  children."     The  child  so  ad- 
dressed took  the  key  to  the  box.    The  notes  comprised  the  bulk 
of  the  property.     Held,  not  a  good  gift  catisn  mortis:  Gano  v. 
Fid;  43  Ohio  St.  462;  54  Am.  Rep.  819.    A,  who  hnd  quarreled 
with  his  wife  during  his  last  illness,  and  about  two  weeks  be- 
fore his  death,  indorsed  over  to  B  bonds  worth   twenty-two 
thousand  dollars,  and  constituting  nineteen  twentieths  of  A's 
personal  estate.     There  was  no  evidence  of  a  delivery,  and  the 
bonds  were  found,  after  A's  death,  among  his  effects.    Held,  not 
a  gift,  and  that  A's  widow  was  entitled  to  her  distributive  share 
in  the  bonds:  Seabright  v.  Scahriyht,  28  W.  Va.  412. 

§1336.    Acceptance    Essential. —  The    acceptance   of 
the  gift  by  the  douee  is  also  essential,  in  order  to  make  a 


§§  1337,  1338   PERSONAL  PROPERTY  IN  GENERAL.    2428 


donatio  causa  mortis  complete  or  perfect.'  But  acceptance 
may  be  presumed  in  cases  where  it  would  be  beneficial  to 
the  donee.^ 

§  1337.  Other  Requisites.— The  gift  does  not  (like  a 
legacy)  require  witnesses.^  Nor  is  there  any  limitation 
to  the  amount  of  property  one  may  so  dispose  of.'*  Thus 
a  married  woman's  gifts  causa  mortis  are  not  limited  by 
the  statutory  limit  as  to  the  am*  .  iit  of  property  she  may 
leave  by  will.^  The  title  to  a  gift  causa  mortis  passes  by 
the  delivery,  defeasable  only  in  the  lifetime  of  the  donor." 
A  donatio  causa  mortis  is  of  the  nature  of  a  legacy.  It 
becomes  valid  only  upon  the  decease  of  the  donor.^  If 
a  will  is  made  after  a  donatio  causa  mortis,  the  donatio  is 
set  aside.^  A  gift  by  a  man  in  his  last  sickness  to  a  per- 
son in  attendance  upon  him  will  be  viewed  with  suspi- 
cion, and  will  not  be  sustained  without  full  and  conclusive 
evidence.^ 

§  1338.  Other  Methods  of  Obtaining  Title  to  Chattels. 
— Other  methods  of  obtaining  title  to  chattels  arc  dis- 
cussed  in  other  portions  of  this  work.^° 


"  Delmottc  ?>.  Taylor,  1  Rertf.  417; 
Armitagc  r.  Wedoe,  .33  Mich.  124;  Da 
Levillaia  v.  Evans,  31)  Cal.   120. 

^  Goss  ?\  Siuglcton,  2  Head,  G7; 
Higluiiau  r.  .Stewart,  38  Midi.  513; 
De  Levillaiii  r.  Evans,  39  Cal.  120; 
Darlaiid  v.  Taylor,  52  Iowa,  503;  33 
Am.  liei).  285. 

3  Iri.^ii  r.  Nuttine.  47  Barb.  370. 

♦  Michener  /-.  Dale,  23  Pa.  St.  59; 
Meacli  ('.  Mcach,  24  Vt.  591.  But  see 
Headley  v.  Kirby,  18  Pa.  8t.  32ti. 

»  Marshall  u.  Berry,  13  AUeu.  43. 

«  Emery  v.  Olougb,  63  N.  S.  652; 
66  Am.  Rep.  543. 


'  Jones  V.  Brown,  34  N.  H.  4"^. 

^  Adams  v.  Nicholas,  1  Miles,  ',10. 

®  Shirley  v.  Whitehead,  1  Ired.  Eq, 
1.30. 

'"  As  to  the  right  to  tlie  incrca^o  of 
omimals  and  the  rights  of  the  liadcrs 
<d  lost  animals  and  ostrays,  see  the 
chapter  on  Animals,  po.if,;  as  to  .stuleu 
chattels,  see  Contract.s;  as  no  lost  or 
stolen  bills  and  notes  and  otiior  nego- 
tiable instrnments,  see  Negi»tia!i!e  la- 
strnments;  as  to  title  hy  piErc!ia>c  iiiul 
sale,  see  Contracts;  as  to  title  !iy  de- 
scent a.nd  devise,  sue  the  titles  Wills 
and  Descent. 


SEAL. 


2428 


2429 


KINDS  OP  PERSONAL  PROPERTY.       8  I339 


iii  acceptance 
I  beneficial  to 

)s  not  (like  a 
ly  limitation 
se  of.*  Thus 
)t  limited  by 
erty  she  may 
iis  passes  l)y 
)f  the  donor." 
a  legacy.  It 
e  donor.''  If 
he  donatio  is 
:iess  to  a  per- 
1  with  suspi- 
id  couclusive 

}  to  Chattels. 

.ttels  are  dis- 


U  N.  H.  4r,o. 

IS,  1  Miles.  '.10. 
lead,  1  Ireil.  Eq, 

to  tlie  imn't'a^o  of 
its  of  the  liihlcrs 
ostrays,  see  the 
po.i/,;  as  tu  stiileu 
its;  VLs  -.1  lo-t  or 
J  and  ot:i'!r  ;icgo- 
00  NegtoLiulile  lu- 
;  by  pjircliase  mid 
•IS  to  title  !iy  de- 
)  the  titles  Wills 


§  1339. 

§  1340. 
§  1341. 
§  1342. 
§  1343. 

§  i;m. 

§  1345. 
§  I34G. 
§  1347. 
§  1348. 
§  1349. 
§  1350. 
§  1351. 
§  1352. 
§  1353. 


CHAPTER  LXX. 

THE  KINDS  OF  PERSONAL  PROPERTY. 

The  diflFcreut  kinds  of  personal  property  -  Chattels  real  and  chattels 
personal  _  Corporeal  and  incorporeal  cnattels 

Animals. 
Annuities. 

Copyrights,  trade-marks,  and  patents. 
Corpses  -  Dead  bodies  -  Burial  -  Cemeteries. 
Fixtures -Things  attached  to  the  freehold. 
Ice. 

Minerals. 

Manure. 

Salaries  and  pensions. 

Ships  and  vessels. 

Vegetables,  fruits,  etc. 

Money,  and  evidences  of  indebtedness  —  Papers. 

Debts  and  demands  not  evidenced  by  writing 
Other  kinds  of  chattels. 


Pw?f    t>^'  °'^'''''*  ^""^^  ^^  P«'s«°al  Property-. 
Chattels    Real    and   Chattels  Personal  -  Corporeal    and 

ncorporea  .-Personal  property  may  be  properly  said  to 
embrace  all  things  which  maybe  the  subject  of  owner- 
ship, except  real  estate.  It  has  two  well-defined  divisions, 
VIZ.,  chattels  real  and  chattels  personal.  Chattels  real 
are  interests  m  land  which  are  less  than  a  freehold  - 
such,  for  example,  as  a  lease  of  real  estate  for  a  number  of 
years.* 

Cluattels  personal  take  in  a  wide  range.  Under  this 
feignat.on  fall  all  movables  of  every  description;  all 
hose  artieles  and  things  whieh  the  owner  may  earry  with 
km  from  plaee  to  plaee-  all  kinds  of  goods,  wares,  and 
merchandise  which  may  be  vended,  worn,  or  consumed: 
ani.ijals,  articles  of  use  and  ornament,  the  stove  in  a 
m.n  s  house,  the  desk  in  his  ofBce,  the  pen  with  which 

-sy*;  d9  Am.  Dec.  740. 


§§  1340,  1341   PERSONAL  PROPERTY  IN  GENERAL.    2430 


'  he  writes  his  letters,  the  ring  on  his  finger,  the  watch  in 
his  pocket,  the  goods  on  his  shelves,  the  money  in  his 
till, —  these  are  chattels  personal.  So  are  all  debts  and 
demands,  the  bills  of  a  bank,  the  notes  of  a  debtor,  an 
annuity,  a  legacy,  a  loan,  a  share  of  stock  in  a  corporation, 
—  everything,  in  fact,  which  is  a  lawful  demand,  and  is  not 
a  piece  of  the  ground.^ 

Chattels  personal  are  of  two  kinds,  namely,  corporeal 
and  incorporeal.  Such  things  as  one  may  see  and  toucli 
are  corporeal  chattels;  such  as  one  cannot  see  and  touch 
are  incorporeal.  The  former  are  things;  the  latter  are 
only  rights.  The  common  law,  to  distinguished  between 
these  two  classes  of  chattels,  more  frequently  uses  the 
terms  "  choses  in  possession  "  and  "  choses  in  action."  ^ 

§  1340.  Animals.  —  Animals  are  chattels  personal,  and 
are  subject  to  most  of  the  rules  of  law  governing  other 
species  of  personalty.' 

§  1341.  Annuities.  —  A  personal  annuity  —  that  is, 
the  right  to  receive  a  periodical  payment  of  money 
charged  upon  personal  estate  —  is  a  species  of  incorpo- 
real  chattel  personal.*  A  personal  annuity  given  by  will 
is  governed  by  the  rules  applicable  to  a  devise  of  realty/' 
A  promise  to  pay  an  annuity  in  consideration  of  forbear- 
ance to  sue  the  personal  representatives  of  the  grantor  is 
binding,  and  may  be  enforced  against  the  promisor,"  An 
annuity  given  by  a  will  for  the  lif*^  of  the  annuitant,  to 
be  paid  by  the  executors  quarterly,  but  not  charged  upon 
the  income  merely,  is  valid.^  An  annuity  is  often  pur- 
chased, instead  of  being  a  gift;  in  such  cases,  it  has  been 


'  As  to  animals,  see  the  next  title, 
Animals;  as  to  domaiuls,  choses  in  ac- 
tion, etc.,seeTitle(.'outracts,r>o.'<<;  as  to 
negotialile  paper,  see  Title  Negotiable 
Instruments;  as  to  shares  of  stock,  see 
Title  Corporations,  untc.  Division  I. 

^  1  Schouler  on  Personal  Property, 
Bees.  4G-58. 


^  See  fost,  Title  Animals. 

*  1  Schouler  on  Personal  Property, 
sec.  60. 

**  Bradhurst  v.  Bradhurst,  1  Paige, 
331. 

0  Horton  v.  Cook,  10  Watts,  124;  30 
Am.  Dec.  151. 

'  Gott  V.  Cook,  7  Paige,  oil. 


2431 


KINDS   OF  PERSONAL  PROPERTY. 


§1342 


held  that  inequality  of  price  will  not  make  tho  transaction 
usurious.*  An  annuity  payable  quarterly,  or  at  other 
periods,  is  not  apportionable  if  tho  annuitant  dies  in  the 
middle  of  a  quarter  or  other  period.'^  Where  there  is  no 
instructions  as  to  when  an  annuity  is  to  be  paid,  it  is 
payable  at  tho  end  of  the  year.'  Where  an  annuity  is 
bequeathed  payable  out  of  the  income  of  tho  estate,  and 
the  income  fails,  the  principal  must  be  resorted  to."* 

Illustrations. — A  testatrix  bequeathed  tho  residue  of  her 
estate  in  trust  for  the  benefit  of  her  sister,  the  interest  accruing 
from  the  same  to  be  paid  over  to  her  every  six  luontlis  during 
her  life.     Held,  that  said  sister  took  the  interest  of  the  residue 
from  the  death  of  the  testatrix:   Weld  v.  Putnam,  70  Me.  209. 
A  provision  in  a  will  was  for  the  payment  of  "five  hundred 
dollars  per  year,  for  ten  years,  to"  B,  in  equal  quarterly  install- 
ments.    Held,  to  be  an  annuity  contingent  on  B's  life,  and  not 
a  legacy  of  five   thousand   dollars   payable   in   installments: 
Bates  V.  Barry,  125  Mass.  83;  28  Am.  Rep.  207.     An  annuity 
was  given  by  will  to  the  wife  of  the  testator,  payable  on  tlie  first 
day  of  March,  and  the  testator  died  in  August.     Held,  that  tho 
annuitant  was  entitled  to  the  full  annuity  on  the  first  day  of 
the  following  March:  McLemore  v.  Blocker,  1  Harp.  Eq.  272.     A 
testator  died  in  September,  having  bequeathed  "A  five  hun- 
dred dollars  annuity,"  to  be  paid  "on  the  first  day  of  March 
in  every  year."    Held,  that  upon  the  first  day  of  March  follow- 
ing the  testator's  death,  the  annuitant  was  entitled  to  a  part 
of  the  annuity  proportioned  to  the  time  elapsed  after  the  testa- 
tor's death:     Waring  v.  Purcell,  1  Hill  Ch.   19o.     A    testator 
made  his  wife  his  residuary  legatee,  adding,  "  It  is  further  my 
will  and  desire  that"  she  pay  "to  my  nephew  L.,  for  the  pur- 
pose of  educating  him,"  commencing  at  a  specified  date,  two 
hundred  dollars  "  annually  until  said  L.  is  of  age."     L.  died 
two  years  afterwards,  before  arriving  of  age.     Held,  that  the 
legacy  ceased  at  L.'s  death:  Anderson  v.  Hammond,  2  Lea,  281; 
31  Am.  Rep.  612. 

§  1342.  Copyrights,  Trade-marks,  and  Patents. — Copy- 
rights, trade-marks,  and  patents  are  chattels  personal.® 

'  Llovd  V.  Scott,  4  Pet.  205.  »,Hall    v.    Hall,    2    McCord    Ch. 

"  Wiggiu  V.  Swett,  6  Met.  194;  39 
Am.  Due.  71G;  Heizer  v.  Heizer,  71 
Ind.  5-26;  36  Am.  Rep.  202;  Tracy  v. 
Strong,  2  Conn.  657.  A  liter  by  stat- 
ute: trving  V.  Rankine,  20  N.  Y.  Sup. 
Ct.  U7. 


»Hall 
267. 

♦  Delaney  v.  Van  Aulen,  21   Hun, 
274. 

*  See  post,  Title  Copyrights,  Trade- 
marks, and  Patents. 


1343 


PERSONAL  PROPERTY   IN   GENERAL. 


2432 


§  1343.  Corpses — Dead  Bodies— Burial— Oemeteries.— 

It  is  generally  held  that  a  corpse  is  not  a  subject  of  prop- 
erty,  nor  can  replevin  be  maintained  for  it.'  But  the 
relatives  of  a  dead  person  have  certain  rights  over  tlio  body 
which  equity  recognizes  and  will  enforce.^  The  duty  de- 
volves  on  a  man's  executor  to  bury  him  in  a  manner  suit- 
able to  his  estate  and  means.'  As  to  the  manner  and 
form  of  the  burial,  the  executor  should  obey  the  expressed 
reasonable  wishes  of  the  testator  as  to  the  disposition  of 
the  remains,  even  if  it  is  not  in  accordance  with  the 
wishes  of  the  next  of  kin.*  Where  there  is  no  expressed 
wish  of  a  deceased  as  to  the  disposition  of  his  remains, 
the  wishes  of  the  surviving  husband  or  widow  shall  con- 
trol, as  against  the  next  of  kin.®  If  a  husband  consented 
to  the  burial  of  his  wife  in  a  lot  owned  by  another,  but 
not  freely,  nor  with  the  intention  or  understanding  that 
it  should  be  permanent,  a  court  of  equity  may  permit 


^  State  V.  Doepke,  68  Mo.  208;  30  Am. 
Rep.  785;  Secor  v.  Secor,  31  Leg.  Int. 
268;  Gritfith  v.  R.  R.  Co.,  23  S.  C.  25; 
55  Am.  Rep.  1.  It  haa  been  held  in 
Indiana  (Bogert  v.  Indianapolis,  13 
Ind.  138)  that  the  bodies  of  the  dead 
belong  to  the  surviving  relations,  in 
the  order  of  inheritance,  as  property, 
and  that  they  liave  the  right  to  dis- 
pose of  them  as  property  within  re- 
strictions analogous  to  those  by  which 
the  disposition  of  other  property  may 
be  regulated.  And  see  In  re  Beekman 
Street,  4  Bradf.  504. 

^  In  Pierce  v.  Swan  Point  Cemetery, 
10  R.  I.  227,  14  Am.  Rep.  007,  the 
court  say:  "  Although  theoody  is  not 
properly  in  the  usually  recognized 
sense  of  the  '"ord,  yet  we  may  con- 
sider it  as  a  sort  of  quasi  property,  to 
which  certain  persons  may  have  riglits, 
as  they  have  duties  to  perform  tow- 
ard it  arising  out  of  our  common 
humanity.  But  the  person  having 
charge  of  it  cannot  be  considered  as 
the  owner  of  it  in  any  sense  whatever; 
he  holds  it  only  as  a  sacred  trust  for 
the  benefit  of  all  who  may,  from  fam- 
ily or  friendship,  have  an  interest  in 
it,  aud  we  think  that  a  court  of  equity 


may  well  regulate  it  as  such,  and 
change  the  custody  if  improperly 
managed.  So  in  the  case  of  custody 
of  children,  certain  persons  aro  prima 
facie  entitled  to  their  custody,  yot  the 
court  will  interfere  and  regulate  it. 
We  think  these  analogies  fuiviisli  a 
rule  for  such  a  case,  and  one  which 
will  probably  do  most  complete  j  ustice, 
as  the  court  could  always  iuterfuie  in 
case  of  improper  conduct,  e.  ;,'.,  pre- 
venting other  relatives  from  vi  n[  ng 
the  place  for  the  purpose  of  iiuliilgance 
of  feeling  or  testifying  their  ruspect 
or  affection  for  the  deceased." 

*  Wynkoop  v.  Wynkoop,  42  Pa.  St. 
295;  82  Am.  Dec.  5015;  P.itt,  ••  out'. 
Patterson,  59  N.  Y.  574;  17  A;.i.  Hop. 
384;  Hepgood  V.  Houghton,  10  Pick. 
154;  CampHeld  v.  Ely,  1.3N.  J.  L  loO. 
As  to  the  duty  of  husband  na]  wife  as 
to  each  other  see,  ante,  llusbaud  and 
Wife. 

*  Estate  of  Benison,  31  Log.  Int. 
190. 

*  Durell  V.  Hayward,  9  Gray,  24S; 
69  Am.  Dec.  284;  Wynkoop  r.  Wyn- 
koop, 42  Pa.  St.  293;  82  A.ii.  Lioc. 
506;  Secor  v.  Secor,  31  Log.  Int. 
268. 


2432 


2433 


KINDS  OF  PERSONAL  PROPERTY. 


§  1343 


meteries.— 

Bct  of  prop- 
.'     But  the 
'erthe  Ijody 
lie  duty  de- 
lanner  suit- 
nanner  and 
le  expressed 
sposition  of 
36  with  the 
ID  expressed 
lis  remains, 
w  shall  con- 
id  consented 
another,  but 
anding  that 
may  permit 

it  as  such,  and 
'  if  improperly 
s  case  of  custody 
.ersons  aro  i>fima 
custody,  yot  tlie 
and  regulate  it. 
ilogies  furnish  a 

and  one  M'hieh 
complete  justice, 
ways  interfere  iu 

iduet,  e.  ;,'.,pre- 
■ea  from  vi  4l  ng 
loseof  indulgence 
ing  their  respect 

;eeased." 

ukoop,  4'.'  Pa.  St. 

(00;  r.itt.  r- on  t'. 

,74;  17  Aai.  llep. 

.diton,   10  I'lclv. 

■.l^N.J.I^.  130. 

[band  and  wife  as 

•te.  Husband  and 

31   Leg.  Int. 

[•d,  9  Gray,  248; 

,'nkoop  r.  \Vyu- 

8-2  A.u.   Liec. 

31   Leg.    Int. 


him  to  remove  her  body,  and  the  cofEn  and  tombstones 
furnished  by  him,  to  his  own  land,  and  may  restrain  inter- 
ference with  such  removal.* 

The  legislature  has  a  right  to  authorize  the  authorities 
of  a  city  to  remove  the  remains  of  the  dead  from  ceme- 
teries.^ The  right  of  burial  in  a  public  coinotcry  is  a 
privilege  or  license  to  be  enjoyed  so  long  as  the  place 
continues  to  be  used  as  a  burial-ground,  sul»jcct  to  muni- 
cipul  regulation,  and  revocable  whenever  the  public  neces- 
sity requires.^  The  right  of  burial  in  a  church-yard  is  a 
privilege  enjoyable  only  so  long  as  the  ground  continues 
a  church-yard,  and  is  subject  to  any  right  of  the  church 
to  abandon  it;  and  one  who  is  merely  a  pew-holder,  or 
has  relatives  buried  in  the  yard,  and  has  no  contract 
relation  with  the  church,  cannot  maintain  the  objection 
that  an  act  of  the  legislature  authorizing  the  removal  of 
the  dead  from  such  church-yard  impairs  the  obligation  of 
a  contract.'*  The  purchaser  of  a  lot  in  a  cemetery  for 
" burial  purposes"  does  not  take  any  title  to  the  soil;  and 
an  act  of  the  legislature,  directing  the  vacation  and  salo' 
of  the  cemetery,  and  the  removal  of  the  bodies,  is  not  an 
unconstitutional  infringement  of  his  rights.^  The  con- 
tinuous and  notorious  use  of  land  for  twenty  years  as  a 
public  burial-place,  with  the  acquiescence  of  the  owner, 
affords  presumptive  evidence  of  its  dedication  for  that  pur- 
pose, and  the  owner  is  estopped  from  denying  it,  and  will 


'  Weld  V.  Walker,  130  Mass.  422;  39 
Am.  Rep.  4G5. 

■'  Craig  V.  First  Presb.  Church,  88 
Pa.  St.  42;  .32  Am.  Rep.  417.  In  New 
Jersey  it  lias  been  held  that  the  legis- 
lature cannot  authorize  municipal  au- 
thdrities  to  ilevote  to  other  uses  lands 
held  l)y  tlie  city  in  trust  forever  for  a 
burud-ground:  Stockton  v.  Newark, 
4-.'N.  .1.  Eq.  531. 

3  l'a;,'o  /■.  Symonds,  63  N.  H.  17;  56 
Am.  Rep.  481. 

*  Craig  V.  First  Presb.  Church,  88 
I'a,  St.  42;  32  Am.  Kep.  417. 
153 


Mure  Kincaid,  00  Pa.  St.  411;  5 
Am.  Rep.  377.  While  it  is  beyond 
the  power  of  a  legislature  to  prevent, 
for  all  time,  the  taking  of  coinotei'y 
property  for  a  public  road,  yet  if  a 
general  law  permitting  a  taking  of 
land  generally  can  stand  with  a  pre- 
vious special  law  exempting  thocouio- 
tery  property,  such  construction  will 
be  given  to  it,  and,  tlie  special  hiw  be- 
ing unrepealed,  the  cemetery  property 
may  not  be  taken  under  the  general 
law:  Hyde  Park  v.  Oakwoods  Ceme- 
tery Assoc.,  119  HI.  141.. 


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23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  USSO 

(716)  872-4503 


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§  1343 


PERSONAL   mOPERTY  IN   GENERAL. 


2434 


be  enjoined  from  interfering  with  such  use.*     So  if  the 
owner  of  the  land  has  consented  expressly  or  by  implica- 
tion to  an  interment  therein,  he  cannot  afterwards  deface 
or  destroy  the  tombstone  or  remove  the  body.''    A  mort- 
gage of  a  lot  in  a  cemetery  is  void;^  a  cemetery  or  grave- 
yard cannot  bo  sold   for  taxes  for  the  improvements  of 
adjacent  streets;*  nor  will  the  authorities  be  permitted  to 
run  streets  through  a  cemetery  without  express  authority.' 
If  the  whole  public  have  the  right,  on  payment,  to  use 
a  cemetery  as  a  burial-place,  land  for  an  addition  thereto 
may  be  condemned;  otherwise  if  the  cemetery  is  a  private 
one  **    Where  a  lot  in  a  cemetery  is  sold  with  reference  to 
a  ('  :•'■'' a  plan,  on  which  plan  appears  a  certain  avenue 
leadii.^'   '|^  to  or  close  beside  the  lot,  affording  a  conve- 
nient ixigbway  to  and  from  it,  that  avenue  becomes  a 
servit'.  ie  m  favor  of  the  lot,  and  cannot  be  legally  ob- 
structed, and  the  purchaser  is  entitled  to  injunction  to 
protect  him  in  his  enjoyment  of  it.^     The  owner  of  a  lot 
in  a  cemetery  cannot  be  interfered  with  by  unreasonable 
regulations  made  by  the  association. *     But  a  person  can 
only  use  a  lot  in  conformity  with  the  by-laws  of  the  as- 
sociation, in  so  far  as  they  do  not  violate  the  law."    A 
public  cemetery  company  cannot  arbitrarily  restrain  a  lot- 


'  Bovce  V.  Kalbaugh,  47  Md.  334; 

28  Auk  Rep.  464. 

■i  State  V.  Wilson,  94  N.  C.  1015. 

*  TIiDinpson  v.  Hickey,  59  How.  Pr. 
434;  S  Aljl).  N.  C.  1 59.  A  liter,  it  seems, 
if  no  interments  have  been  made  in  it: 
Lantz  r.  Buckingham,  11  Abb.  Pr.,  N. 
S.,  64;  4  Lans.  484. 

*  Lmiisville  v.  Nevin,  10  Bush,  549; 
19  Am.  Rep.  78.  See  Olive  Cemetery 
Assoc,  r.  Philadelphia,  93  Pa.  St.  129; 
39  Am.  Rep.  732. 

*  Trustees  t'.  Walsh,  57  111.  363;  11 
Am.  Rep.  21;  Evergreen  Cemetery 
Assoc.  V.  New  Haven,  43  Conn.  234; 
21  Am.  Rep.  643. 

*  Evergreen  Cemetery  v.  Beecher, 
53  Conn.  551. 

'  Hurke    v.  Wall,  29  La.  Ann.  38; 

29  Am.  Rep.  316. 


'  Mount  Moriah  Cemetery  Assoc,  r. 
Com.,  181  Pa.  St.  235;  22  Am.  Kep, 
743.  A  by-law  tliat  lots  sliiill  not  lie 
transferred  without  the  consent  of  tlie 
managers  is  valid  and  reasonable: 
Com.  V.  Mount  Moriah  Cemetery  As- 
soc., 10  Phila.  385.  Or  that  only  per- 
sons of  a  particular  religion  shall  be 
interred  there:  People  v.  St.  Patrick's 
Cathedral,  21  Hun,  184;  or  persons  nnt 
Masons:  Id.  Where  burial  is  refused 
without  legal  justification,  rmmilnnnn 
will  lie  to  compel  it:  King  r.  Cole- 
ridge, 2  Barn.  &  Aid.  806;  Mount  .Mo- 
riah Cemetery  Assoc,  v.  Com.,  81  Pa. 
St.  235;  22  Am.  Rep,  743. 

•  People  i\  St.  Patrick's  Cathsdral, 
21  Hun,  184;  Dwenger  v.  (jruaj^',  113 
Ind.  106. 


2434 


2435 


KINDS   OF  PERSONAL   PROPERTY. 


§1343 


I    So  if  the 
by  implica- 
vards  deface 
\f}    A  mort- 
3ry  or  grave- 
L'ovements  of 
permitted  to 
ss  authority.' 
'meut,  to  use 
lition  thereto 
ry  is  a  private 
ii  reference  to 
ertain  avenue 
•ding  a  conve- 
ue  becomes  a 
be  legally  ob- 
injunction  to 
owner  of  a  lot 
/  unreasoncible 
it  a  person  can 
aws  of  theas- 
e  the  law."    A 
y  restrain  a  lot- 

1  Cemetery  Assoc,  r. 

235;  22  Am.  Kop. 

.at  lots  BluiU  not  >e 

ut  the  consent  of  tie 

id    ami    reasunalle: 
oriah  Cemetery  As- 
j      Or  that  only  Vt'r- 
lar  religion  shall  be 
eople  V.  St.  Patrick  s 
a,  184;  or  persons  not 
liere  burial  is  relused 
itiftcation,  7nM<l>nm 
el   it:    Kins  r.  toe- 
AUl.806;  Mou"''/'"' 
3so«.  V.  Com.,  61 1-*- 
iep.  743.  , 

Patrick's  Catheclral. 

renger  v.  tr«a«''  *''* 


owner  from  building  a  suitable  vault  above  ground  on  his 
lot  where  others  have  been  permitted  to  do  the  same.*  It 
is  liable  to  the  proprietor  of  a  grave  for  the  negligent 
burial  of  a  stranger  therein.^  The  purchaser  of  land  on 
which  is  located  a  burial-ground  may  be  enjoined  from 
removing  the  bodies,  against  the  wishes  of  those  inter- 
ested.' One  who  erects  grave-stones  to  the  memory  of  an- 
other may  maintain  an  action  'or  an  injury  done  to  them 
during  his  lifetime.  But  after  the  decease  of  the  one 
who  reared  them,  the  action  for  an  injury  thereto  must  be 
brought  by  the  heirs  of  him  to  whose  memory  they  were 
erected.*  A  husband  is  not  liable  as  trespasser  for  re- 
moving a  grave-stone,  placed  there  by  his  wife's  mother, 
from  the  grave  of  his  wife,  whom  he  has  buried  in  a  pub- 
lic burying-ground,  where  he  does  not  injure  the  stone, 
and  holds  it  in  possession  ready  to  be  delivered  to  the 
owner  on  demand,  and  causes  the  removal  for  the  purpose 
of  substituting  another  stone.® 

Illustrations. — The  dead  body  of  plaintiff's  wife  was  de- 
livered to  the  defendants,  who  wore  physicians,  for  the  )'Urpose 
of  dissecting  the  throat.  The  defendants  promised  to  perform 
the  operation  in  presence  of  the  friends  of  deceased  and  to  give 
the  body  a  decent  burial.  The  defendants  retained  the  l)ody 
upon  some  pretext  longer  than  was  necessary,  and  afterwards, 
upon  demand  of  deceased's  friends,  returned  the  body  in  a 
rough  box  to  the  friends  of  deceased.  The  husband,  who  had 
been  absent  from  home,  returned  and  brought  suit  for  lacera- 
tion of  feelings,  expense  of  recovering  tlie  body,  and  for  the 

fraud.     Heldy  that  the  action  was  maintainable:  v. , 

4  Am.  L.  T.  127.  A  husband,  with  the  full  approval  of  his 
wife,  was  buried  by  his  father  in  the  latter's  cemetery  lot. 
//(/(/,  that  the  wife  should  be  enjoined  from  removing  his  re- 
mains: Peters  v.  Peters,  43  N.  J.  Eq.  140.  There  was  a  con- 
troversy between  a  son  and  the  widow  for  the  possession  of  the 
remains  of  the  father  and   husband,  the  son  desiring  to  inter 


'  Rosohill  Cemetery  Co.  v.  Hopkiu- 
Bon,  14  111.  209. 

''  DuiiuuUy  V.  Boston  etc.  Cemetery 
Assoc,  140  Mass.  16.3. 

^  First  Presb.  Church  v.  Second 
"iliurch,  2  Brewat.  372;  Boyce  v.  Kal- 
AU^h,  47  Md.  334;  28  Am.  Hep.  404; 


St!e  New  York  etc.  Cemetery  Co.  v. 
liiickinaster,  49  N.  J.  L.  441).  But  see 
Hamilton  v.  New  Albany,  ;}0  Iml.  482. 

*  Scibin  V.  Harkuess,  4  N.  U.  415;  17 
Am.  Dec.  437. 

^  DuroU  V.  Hayward,  9  Gray,  248; 
69  Am.  Dec.  284. 


§  1343 


PERSONAL   PROPERTY  IN   GENERAL. 


243G 


them  in  a  lot  purchased  by  the  deceased,  in  which  lay  the  ro- 
mainsof  a  former  wife  and  two  children,  and  the  widow  proposing 
to  place  them  in  her  father's  lot,  siie  having  no  children.  Ildd, 
that  the  claim  of  the  son  should  be  preferred:  Snyder  v.  Snydrr, 
60  How.  Pr.  3o8.  The  deceased,  at  her  request,  and  with  the 
concurrence  of  all  her  children  except  one,  was  buried  in  licr 
sister's  lot.  Held,  that  that  one  child  or  his  executors  couhl  not 
remove  her  remains  to  another  place  of  sepulture:  Loicric  v. 
Flitt,  11  Phila.  303.  A  person,  dying,  was  buried  witli  the 
consent  of  his  widow  in  a  lot  previously  purchased  by  liim. 
Afterwards,  the  widow,  against  the  wishes  of  the  decedent's  only 
child,  caused  the  remains  to  be  removed  to  another  cemetery. 
The  child  thereupon  filed  a  bill  for  a  decree  that  the  corpora- 
tion of  the  cemetery  to  which  the  removal  had  been  made  re- 
store the  body  to  the  place  whence  it  had  been  removed,  and 
restraining  the  widow  from  again  removing  or  meddling  witl>, 
said  remains.  On  demurrer  by  the  widow,  held,  that  the  court 
had  jurisdiction  of  the  matter,  and  that  the  allegations  of  tlic 
bill  entitled  the  complainant  to  the  decree:  Pierce  v.  Sirnn 
Point  Cemetery,  10  R.  I.  227;  14  Am.  Rep.  667.  A  statute  au- 
thorized rural  cemetery  associations  to  acquire  land  by  exercis- 
ing the  right  of  eminent  domain.  Held,  that  the  use  was  a 
private  one, and  the  statute,  therefore, unconstitutional  and  void: 
In  re  Deansville  Cemetery  Association,  6G  N.  Y.  569;  23  Am.  Ucp. 
86.  The  charter  of  a  cemetery  company  authorized  it  to  acquire 
and  use  land,  not  exceeding  five  hundred  acres,  for  burial  pur- 
poses. After  it  had  acquired  the  land,  and  spent  money  in 
preparing  and  adorning  the  same,  a  statute  was  passed  forl)iiJ- 
ding  the  company  to  use  any  of  its  lands  for  burial  purposes 
outside  of  its  then  inclosure,  which  was  less  than  five  hunth-ed 
acres.  Held,  that  as  it  did  not  appear  that  any  nuisance  ex- 
isted or  was  liable  to  arise,  the  statute  was  not  a  valid  exerci.-^o 
of  the  police  power,  and  was  unconstitutional:  Toion  of  Lah 
View  v.  Rose  Hill  Cemetery  Co.,  70  111.  191;  22  Am.  Rep.  71.  A 
by-law  of  a  cemetery  prohibited  the  burial  of  negroes  tliero. 
Held,  void  as  to  lot-owners  before  its  passage:  Mount  Muriuh 
Cemetery  Association  v.  Com.,  81  Pa.  St.  235;  22  Am.  Rep.  7'l-"5.  A 
bought  a  lot  in  a  public  cemetery  owned  by  a  city.  In  fnnt 
of  the  lot,  and  shown  on  apian  referred  to  in  his  deed  of  t!ie 
same,  there  was  an  avenue  and  a  triangular  space  inclosed  liy 
lilies.  After  A's  purchase,  the  city  built  a  wall  and  a  terr;ien 
in  this  space,  and  closed  the  avenue.  A  then  brought  a  liiil  in 
equity  for  an  injunction  to  restrain  the  city  from  building  tlio 
wall  and  terrace,  and  to  compel  it  to  restore  the  premisi  s  to 
their  condition  at  the  time  of  the  purchase.  The  case  was  re- 
ferred to  a  master,  who  found  that  the  acts  complained  of  were 
alterations  made  in  good  faith  for  the  general  improvement  of 


tmm 


2436 

jh  lay  the  ro- 
low  proposing 
ildren.    Ilchl, 
der  V.  Snydrr, 
and  with  the 
buried  in  her 
itors  could  not 
Lire:  Loivric  v. 
iried  with  tho 
lased  by  him. 
Iccedent's  only 
ither  cemotcry. 
t  the  corpoiii- 
been  made  re- 
removed,  and 
meddling  with 
,  that  the  court 
3gations  of  the 
^ierce    v.   Sican 
A  statute  inl- 
and by  exercis- 
;  the  use  was  a 
tionaland  void: 
i9;  23  Am.  Hep. 
;ed  it  to  acquire 
,  for  burial  pur- 
jpent  money  in 
8  passed  forliid- 
burial  purposes 
an  five  hundred 
ny  nuisance  ex- 
a  valid  exercise 
I:   Toion  of  Lol't^ 
m.  Rep.  71.    A 
|f  negroes  ther(\ 
Mount  Min-iih 
in.  Rep.  74;').  \ 
city.     In  fr^Ilt 
his  deed  of  the 
,ace  inclosed  by 
,11  and  a  torraoo 
.)rought  a  iiii!  in 
jm  building  the 
[the  premises  to 
^hc  case  was  rc- 
.plained  of  w<'re 
improvement  of 


2437 


KINDS  OP  PERSONAL  PROPERTY. 


§1344 


the  cemetery,  aud  not  impairing  the  value  of  A's  lot,  or  Ida 
means  o^  access  to  it;  that  the  pecuniary  loss  to  A  was 
nothing,  and  the  injury  or  damage,  if  any,  was  wholly  one  of 
sentiment  and  temper;  and  that  A  had  lain  by  and  taken  no 
other  action  than  to  protest  while  the  city  had  expended  in  the 
work  in  question  a  large  sum  of  money  to  the  benefit  of  the 
cemetery;  and  that  the  cost  of  removing  the  wall  and  terrace 
would  largely  exceed  the  value  of  the  plaintiff's  interest  in  the 
premises.  i/cW,  that  the  bill  could  not  be  maintained:  Peril  as 
v.  Lawrence,  138  Mass.  361.  The  plaintiff,  as  a  member  of  a 
society,  acquired  an  exclusive  right  of  burial  in  a  certain  lot  so 
long  as  the  ground  should  remain  a  cemetery.  The  defendant, 
without  his  consent,  buried  a  child  in  that  lot.  Held,  that  an 
action  of  trespass  quare  clausum  f regit  would  lie,  although  the 
plaintiff  had  withdrawn  from  the  society.  The  defendant's 
conduct  being  malicious,  punitive  damages  were  proper:  Smith 
v.  Thompson,  55  Md.  5;  39  Am.  Rep.  409. 

§  1344.    Fixtures — Things  Attached  to  the  Freehold. — 

All  buildings  upon  land,  and  other  structures,  are  regarded 
as  part  of  the  realty,  and  are  not  chattels  personal.  They 
are  called  "fixtures."'  A  building  while  in  transit  from 
one  lot  to  another  is  personalty;^  but  when  reafHxed,  it 
again  becomes  realty,'  unless  originally  severed  by  a 
trespasser  and  attar'ied  to  his  own  soil.*  A  building  erected 
under  an  agreement  with  the  owner  of  the  land  that  the 
builder  shall  have  the  right  to  remove  it  is  person. olty.* 
Millstones  put  into  a  mill  will  continue  personal  property, 
removable  by  the  owner,  there  being  an  agreement  for 
such  removal;  and  the  agreement  may  be  enforced  not- 
withstanding a  change  of  ownership  in  mill  and  freehold." 

Illustrations.  —  An  ice-house  was  erected  under  an  oral 
agreement  with  the  owner  of  the  land,  and  built  on  stones  and 
posts.  Held,  personal  property,  removable  at  the  option  of  the 
builder:  Ham  v.  Kendall,  111  Mass.  297,  and  see  Cor  win  v. 
Moot-head,  43  Iowa,  456;  Sagar  v.  Echert,  3  III.  App.  412.     A 


'  See  Tfioat,  Title  Fixtures. 

^  lluubschmauu  v,  McHenry,  29  Wis. 
Go.'). 

•i  Salter  v.  Sample,  71  111.  439; 
Nortlu'up  V.  Traak,  39  Wis.  515. 

*  iiuubiichmaaa  v.  McUeary,  29  Wis. 
G55. 


*  Priestley  v.  Johnson,  67  Mo.  <i32; 
Evans r.  McLucas,  15 S.  C.  07;  (Jurtisa 
V.  Hoyt,  19  Conn.  154;  48  Am.  Dec. 
149. 

«  SuUivau  V.  Jones,  14  S.  C.  302. 


§  1345 


PERSONAL  PROPERTY  IN  GENERAL. 


243S 


grain-elevator  was  built  upon  the  right  of  way  of  a  railroad, 
under  a  license  given  by  the  company,  with  the  understandinfr 
that  it  was  not  to  be  a  permanent  structure,  and  it  was  operated 
by  shafting  from  a  steam-mill.  Held,  personal  proixnty: 
Walton  V.  Wray,  54  Iowa,  5ul.  A  owned  a  frame  building  six- 
teen by  twenty  feet,  and  one  story  high,  used  for  county  ollices. 
A  moved  this  building  to  the  new  county  seat,  upon  li's  lund, 
upon  an  understanding  that  B  should  obtain  a  patent  for  tho 
land  and  should  convey  it  to  the  county,  tho  building  to  be- 
come also  the  property  of  the  county.  1)  obtained  his  iiatcnt, 
but  refused  to  convey  the  land.  Held,  that  the  building 
remained  personalty  and  could  be  removed:  Rush  Co.  ComiuU- 
doners  v.  Stubbs,  25  Kan.  322. 


§  1345.  Ice.  —  Ice  belongs  to  the  owner  of  tho  land 
under  the  water  on  which  it  is  formed.'  And  he  has  the 
sole  right  to  take  ice  formed  upon  the  stream  opposite  his 
land.  Neither  is  it  a  defense  to  a  person  taking  such  ice 
for  the  purpose  of  selling  it  that  is  an  obstruction  to 
navigation.^  The  riparian  owner  may  dam  the  stream  in 
order  to  make  a  pond  for  ice,  and  he  may  drain  such  pond 
and  hold  back  the  water  until  he  shall  have  cleaned  out 
the  pond  in  order  that  the  ice  may  be  pure;  those 
below  cannot  complain  of  such  use.'  But  a  ripa- 
rian owner  has  no  ownership  of  the  ice  on  a  navigable 
stream.     It  belongs  to  the  first  person  appropriating  it.^ 


»  State  V.  Pottmcyer,  33  Ind.  402; 
5  Am.  Rep.  224;  Alill  River  Co.  v. 
Smith,  34  Conn.  4G2;  Paiue  v.  Woods, 
lOS  Mass.  173;  Higgins  i\  Kustercr, 
41  Mich.  318;  32  Am.  Rep.  100;  Myer 
V.  Whitakcr,  3  Abb.  N.  C.  172.  In 
State  V.  Pottmeyer,  33  Ind.  402,  5 
Ain.  Rep.  224,  it  was  held  that  ice 
formed  in  a  stream  was  a  valuable 
article  within  those  words  in  a  crimi- 
nal statute. 

^  Washington  Ice  Co.  v.  Shortall, 
101  111.  40;  38  Am.  Rep.  255. 

»  De  Baun  v.  Bean,  29  Hun,  236. 

♦  Wood  V.  Fowler,  26  Kan.  682, 40  Am. 
Rep.  3.30,  the  court  saying:  "  Wiiero 
tkere  is  no  ownership  of  the  subjacent 
soil,  a  riparian  proprietor  has  no  title 
to  the  ice.  The  title  to  the  soil  being 
ia  the  state,  and  the  stream  being  a 


public  highway,  obviously  the  owTicr- 
ship  of  the  ice  would  vest  in  tlio  ;,'en- 
eral  public,  or  in  the  state  as  the 
representative  of  that  public.  I  lie  ri- 
parian proprietor  would  have  no  more 
title  to  the  ice  than  he  would  to  tlio 
fish.  It  is  simply  this,  that  liin  land 
joins  the  laud  of  the  state.  Tlie  lact 
that  it  so  joins  gives  him  no  title  to 
that  land,  or  to  anything  foriaoil  or 
grown  upon  it,  any  more  than  it  does 
to  anythinf(  formed  or  grown  or  fouiul 
upon  the  land  of  any  individual  iiui^'h- 
bor.  Undoubtedly,  in  view  of  the  im- 
portance that  ice  is  rapidly  assmniiig 
as  a  merchantable  commodity,  it  wiiiiM 
be  wise  for  the  state  to  legislate  in  ret- 
ercnce  to  the  ice  product  of  tlio  navi- 
gable streams;  but  until  sucli  Iciisla- 
tion  ia  had,  it  would  seem  that  thu  oue 


B8 


243S 

of  a  railroad, 
understand  iiijT 
t  was  opcrati'd 
laal    property: 
e  building  six- 
county  ollices. 
upon  B's  land, 
patent  for  the 
milding  to  ho- 
ned his  patent, 
t   the   lmildin<^ 
ish  Co.  Co)iuuifi- 


er  of  the  land 
.nd  he  has  the 
m  opposite  his 
iking  such  ieo 
obstruction  to 
L  the  stream  in 
rain  such  poiid 
ve  cleaned  out 
3  pure;  those 
But  a  ripa- 
»n  a  navigable 
propriatiiig  it.^ 

bviously  the  owncr- 
uld  vest  in  tlio  ^'cii- 
I   the   state   iim   tlie 
hat  public.     Tlii-'  ri- 
would  have  im  mcire 
lan  ho  would  to  tlio 
r  this,  that  liis  luiul 
tho  state.     'I'Iki  I'act 
ive3  him  no  title  to 
anything  fori  nod  or 
ly  more  than  it  docii 
dor  grown  or  fouiul 
ny  indivi<Uiiil  nuigh- 
f,  in  view  of  the  iiii- 
ia  rapidly  assuming 
commodity,  ;t  would 
te  to  legislate  ni  ret- 
iroduct  of  tho  mivi- 
t  until  such  lo'.'i>la- 
Id  Beem  that  tlio  oue 


2439 


KINDS   OP  PERSONAL   PROPKIITY. 


§  1345 


But  ice-fields  on  navigable  rivers,  after  being  staked, 
fenced,  and  scraped,  and  in  some  instances  connecting 
fields  extending  across  the  river,  are  so  far  tho  prop- 
erty of  the  appropriator  that  an  action  will  lie  ap^ainst 
one  who  disturbs  his  right.'  The  legislature  has  author- 
ity to  provide  rules  regulating  tho  possession  and  culti- 
vation of  such  ico.^  As  between  the  owner  of  tho  fee 
and  the  owner  of  an  easement,  the  ice  oji  a  pond  belongs 
to  the  former."  The  owner  of  land  overflowed  by  a  dam 
may  remove  and  take  ice  formed  over  his  land,  if  ho  does 
not  perceptibly  injure  the  mill-owner.*  The  owner  of  a 
mill-dam  on  an  unnavigable  stream,  who  maliciously  and 
unnecessarily  draws  off  the  water  on  a  pond  abov(>,  de- 
stroying an  ice-field,  is  liable  to  the  riparian  owner  of  tho 
land  under  tho  pond.''  All  persons  have  a  right  to  travel 
over  the  ice  upon  a  river.  If  travelers  have  made  a  path 
on  it,  no  one  has  a  right  to  cut  a  hole  there  for  tho  pur- 
pose of  watering  crttle,  or  any  other,  and  one  who  does 
so  will  be  liable  for  an  injury  caused  thereby."  Appro- 
pridtors  of  ico  on  navigable  rivers  must  guard  their  llelds 
from  danger  to  persons  who  may  bo  likely  to  innocently 
intrude  upon  them.' 
A  sale  of  ice  not  yet  cut  is  a  sale  of  personalty."    Tho 


who  first  appropriates  and  secures  the 
ice  which  is  formed  is  entitled  to  it, 
ami  on  the  same  principle  that  ho  who 
catches  a  fisii  in  one  of  those  rivers 
owns  it":  Hickey  t'.  Hazard,  3  AIo. 
App.  480.  Gago  v.  Stoinkrauss,  131 
Mass.  222;  Rowoll  v.  Doyle,  131  Mass. 
474.  Contro,  Washington  Ice  Co.,  v. 
Shortall,  101  III.  4(5;  40  Am.  Hop.  176. 

'  Woodman  v.  Pitman,  7'J  Mo.  450; 
1  Am.  St.  Rep.  343. 

"  Woodman  v.  Pitman,  79  Mo.  456; 
1  Am.  St.  Rop.  342. 

'  Hrookville  etc.  llvdraulic  Co.  v. 
Butlor,  1)1  Ind.  134;  4(3  Am.  Rep.  580. 

♦Doge  V.  Berry,  2G  llun,  240. 

*  Stevens  v.  Kolley,  78  x\le.  445;  57 
Am.  Kop.  813. 

8  Fionch  V.  Camp,  18  Mo.  433;  36 
Am.  Dec.  728. 


'  Woodman  v.  Pitman,  79  Mo.  450; 
1  An>.  St.  Rep.  343. 

"  lliggins  ('.  Kusterer,  41  Micii.  318; 
32  Am.  Rop.  100,  tho  court  .-nying: 
"The  sale  to  Higgins  was  not  a  .-.alu  of 
such  ice  as  might  from  time  to  time 
be  formed  on  tiio  pond,  \>\\l  of  ice 
which  was  there  already,  and  whicii, 
if  not  cut,  would  disappoar  \/itl.  tlio 
coming  of  mild  weather,  and  have  no 
further  existence.  It  wa-i  not,  like 
crops  or  fruit,  connected  wit!i  (he  tsoil 
by  roots  or  trees  tiirough  whith  tlioy 
gained  nourishment  hofore  niilurity. 
It  was  only  tho  product  of  I'.muing 
water,  a  portion  of  which  hor  i!:io  li.xcd 
by  froozing,  and  if  not  remii\  cii  iii  tiiat 
condition,  would  lose  its  iiii'iiLity  Ijy 
meUing.  In  its  frozen  coudiiion  it 
drew  nothing  from  the  laud,  and  got 


§  1345     PERSONAL  PROPERTY  IN  GENERAL. 


2440 


measure  of  damages  for  taking  ico  from  a  stream,  the 
plaintiff  liaving  the  exclusive  right  to  such  ice,  is  its  value 
as  soon  as  it  existed  as  a  chattel,  that  is,  when  scraped, 
plowed,  sawed,  cut,  and  severed,  and  ready  for  removal.' 

Illvstrations. — The  owner  of  a  beer- room  and  an  ice-room 
connected  by  slides  gave  a  chattel  mortgage  on  it  to  defendant, 
and  a  bill  of  sale  of  the  ice  in  the  ice-room  to  plaintiffs.  De- 
fendant stored  beer  in  the  beer-room,  and  gave  plaintitTs  notice 
to  remove  the  ice,  which  they  did  not  do,  nor  did  they  ever  de- 
mand it  from  defendant.  Defendant  opened  the  slides  between 
the  two  rooms,  and  allowed  a  current  of  air  to  pass  over  the  ice 
and  into  the  beer-room,  cooling  the  beer,  and  causing  a  more 
rapid  melting  of  the  ice  than  would  otherwise  have  occurred. 
Held,  that  defendant  is  liable  for  the  ice  so  destroyed:  A^rhrt- 
mann  v.  Philip  Best  Brewing  Co.,  45  Wis.  262.  A  had  constructed 
a  boom  in  a  river  within  which  ice  was  forming,  which  he  in- 
tended to  cut  and  sell  when  deep  enough.  It  had  frozen  to  the 
depth  of  six  inches,  when  B's  boat,  which  was  running  in  the 
river,  came  so  near  the  boom  that  her  swell  broke  up  the  ico,  and 
the  weather  thereafter  continuing  mild,  A  was  unable  to  fill  his 
ice-houses.  There  was  room  in  the  river  for  the  boat  to  have 
passed  without  injury.  Held,  that  B  was  liable  for  the  damages: 
People's  Ice  Co.  v.  The  Excelsior,  44  ^lich.  229.  See  Hidaj 
V.  Hazard,  3  Mo.  App.  480.     A,  who  had  built  a  dam  on  a 


no  more  support  from  it  than  a  log 
floatiug  on  the  water  wouUl  have 
had.  Its  only  vaUie  consisted  iu  its 
disposable  quality  as  capable  of  re- 
moval from  the  water  while  solid,  and 
of  storage  where  it  might  be  kept  in 
its    solitl   state,   which  could   not   be 

()reserved  without  such  removal.  If 
eft  where  it  was  formed,  it  would  dis- 
appear entirely.  While  wo  think 
there  e:in  be  no  doubt  that  the  origi- 
nal title  to  ice  must  be  in  the  posses- 
sor of  the  water  where  it  is  formed, 
and  while  it  woidd  pass  with  that 
Ijosses  jIou,  yet  it  seems  absurd  to  hold 
that  .1  product  which  can  have  no  use 
or  value  except  as  it  is  taken  away 
from  the  water,  and  which  may  at  any 
time  be  removed  from  the  freeliold  by 
the  moving  of  the  water,  or  lose  ex- 
istence entirely  by  melting,  should  be 
classed  as  realty  instead  of  personalty, 
when  the  owner  of  the  freehold  chooses 
to  sell  it  by  itself.  When  once  sev- 
ered, no  skill  cau  join  it  again  to  the 


realty.  It  has  no  more  organic  con- 
nection with  the  estate  than  anytliing 
else  has  that  oan  float  upon  the  water. 
Any  breakage  may  sweep  it  down  the 
stream,  and  thus  cut  otf  tho  propLrty 
of  the  freeholder.  It  has  less  perma- 
nence than  any  crop  that  is  raised 
upon  the  land,  and  its  detention  in 
any  particular  spot  is  liable  to  be 
broken  by  many  accidents.  It  uiust 
be  gathered  while  fixed  iu  place,  or  not 
at  all,  and  can  oidy  be  kept  iu  exist- 
ence by  cold  weather.  In  tlie  pn  sent 
case  the  peculiar  situation  of  the  pond 
rendered  it  likely  that  the  ice  could 
not  float  away  until  nearly  destroyed, 
but  it  could  not  be  preserved  fnmi  the 
other  risks  and  incidents  of  its  pre- 
carious existence.  Any  storm  or  ^^llO(;k 
might  in  a  moment  convert  it  into 
floating  masses,  which  no  ingenuity  of 
black-letter  metaphysics  could  annex 
to  the  freehold. " 

■  Washington  Ice  Co.  v.  Shortall, 
101  IU.  46;  38  Am.  Bep.  255. 


2440 


2441 


KINDS  05"  PERSONAL  PROPERTY. 


§  1346 


stream,  the 
e,  is  its  value 
hen  scrai>e(l, 
f  removal.* 

id  an  ice-room 
b  to  defendant, 
)laintifT8.     Do- 
ilaintitTs  notice 
1  they  ever  de- 
glides  between 
iss  over  the  ice 
causing  a  more 
have  occurred, 
troyed:  Asrhcr- 
lad  constructed 
g,  which  he  in- 
id  frozen  to  the 
running  in  the 
5  up  the  ice,  and 
nablc  to  fill  las 
he  boat  to  have 
or  the  damages; 
;9.     See  ///'•/.(']/ 
[It  a  dam  on  a 

move  organic  con- 
jtate  than  anything 
loat  upon  tlic  water. 
\  sweep  it  down  the 
ut  otr  tho  proiiLTty 
I  It  has  less  purma- 
top   that   is   iNiisod 
ul  its  detention  in 
lot  is  liahlc  to  be 
iiceidents.     It  must 
kxed  in  place,  or  not 
ly  bo  kept  in  exist- 
icr.    In  the  present 
ituation  of  the  pond 
[that  the  ice  could 
|il  nearly  destroyed, 
preserved  frmntho 
icidents  of  its  pre- 
Any  storm  or  s^hock 
Int  convert  it  into 
hich  no  ingenuity  of 
Ihysics  could  annex 

he  Co.  V.  Shortall, 
1.  Rep.  255. 


Btreamon  hisown  land, obtained  from  the  ownerof tlio  land  above 
him  the  right  to  overflow  his  hind  without  any  limitation  as  to 
the  use  of  the  waters  held  back  by  the  dam.  //(■/(/,  that  A  was 
entitled  to  the  ice  formed  in  the  water  overtlowiug  the  lands  of 
the  owner  above  liim,  and  couhl  recover  the  value  of  the  ico 
which  had  l)eon  taken  therefrom  by  a  third  person  by  ))ermission 
of  such  owner:  Myer  v.  Wlutalrr,  18  Alb.  L.J.  128.'  The  owner 
of  a  pond  executed  a  lease  under  seal,  whereby  he  demi.«ed  and 
let ''  the  sole  and  exclusive  right  to  cut  and  carry  away  "  from 
his  said  pond  "  all  such  ice  as  can  be  so  cut  in  form  and  shape 
to  use  either  for  private  use  or  as  merchandise";  and  it  con- 
tained a  provision  "  that  the  lessor  may  cut  all  ice  needed  for 
bis  own  use  from  and  off  said  pond."  Held,  that  the  lessee 
acquired  a  valuable  right  to  use  or  sell  all  such  ice,  except  what 
the  lessor  needed  for  his  private  use;  that  he  had  a  riglit  of 
action  against  both  the  lessor  who  interfered  with  him  and  a 
Btrauger  who  cut  ico  from  the  pond:  Richards  v.  Gariffrct,  145 
Mass.  486. 

§  1346.  Minerals.  — Soil  dug  from  the  land  and  placed 
on  other  land  becomes  a  chattel.''  Minerals  are  real  i)rop- 
erty  while  in  the  earth,  but  as  soon  as  they  are  dug  out 
they  become  chattels  personal.'  A  stone  split  out  and 
freed  from  its  original  connection  in  a  ledge,  but  not 


*  This  decision  is  iu  conflict  with 
that  of  Euiott,  J.,  in  Marshall  v. 
Peters,  12  How.  Pr.  218,  where  it 
was  held  that  the  party  purchasing 
ice  from  the  owner  of  a  pond  could 
not  obtain  an  injunction  against  a 
trespasser  wlio  undertook  to  remove 
it.  Ill  tliat  case  iu  was  aaid:  "The 
water  in  a  running  stream  can  never 
become,  in  any  such  sense  as  was 
claiiuud  on  tlio  argument,  the  prop- 
erty of  a  riparian  proprietor,  even  if  he 
own.s  both  Ijanks  and  the  stream  passes 
wholly  through  his  lands.  All  the 
propurty  that  a  man  can  acquire  in 
flowing  water  is  a  right  to  its  use. 
He  may  have  a  certain  right  of  prop- 
erty ill  it,  Init  the  water  itself  is  not  his 
property.  He  has  a  right  to  its  nat- 
ural tlow,  and  to  use  it  for  his  cattle, 
or  his  hoiiseiiold,  or  upon  his  mill- 
wheiU  But  he  cannot  stop  its  cur- 
rent, aor  divert  its  flow,  nor  increase 
or  diiii.uish  it  in  any  appreciable 
quantity.  He  must  allow  the  waters 
to  pass  out  of  bia  baadt)  aa  they  eater 


them,  and  his  only  right  is  a  right  to 
use  them  as  they  flow." 

'•'  Northam  v.  Bowdon,  1 1  E.v.  70; 
Lacustrine  Oo.  v.  Lake  (ruano  Co. ,  82 
N.  Y.  47(5. 

•*  Lykens  etc.  Co.  v.  Dock,  G'2  Pa. 
St.  232;  Forsyth  r.  Wells,  41  I'a.  St. 
291;  80  Am.  Dee.  lilT.  Tlio  New 
York  statute  providing  that  oil-welia 
and  fixtures  on  lands  leased  for  oil 
purposes,  and  oil  interests  and  rigiita 
hekl  under  lease,  contract,  or  lieoiisc, 
shall  bo  deemed  personal  property, 
has  no  application  to  an  estate  c^irved 
out  of  the  fee,  wherel)y  the  land  ia 
granted,  but  tlie  oil,  gas,  and  iiiinerala 
are  reserved,  with  the  exclusive  right 
to  dig,  mine,  operate,  etc.;  the  in- 
terest thus  reserved  is  a  chattel  real: 
Ri^hburg  Bank  v.  Dow,  41  Hun,  13. 
The  right  to  mine,  to  enter  land,  dig 
for  and  remove  ore,  is  an  incorporeal 
hereditament:  Arnold  r.  Stevens.  24 
Pick.  KXi;  35  Am.  Deo.  30.);  lliddlo 
V.  Brown,  20  Ala.  412;  5l>  Am.  Dec. 
202. 


§1347 


PEnSONAL  PBOPEBTY  IN  OENEBAL. 


2442 


removed  away  from  the  place,  does  not  necessarily  pass  by 
a  deed  of  the  land  from  which  it  has  beon  severed.  If 
severed  for  the  purpose  of  being  used  upon  the  land,  it 
will  so  pass;  but  if  severed  in  order  to  bo  removed  and 
used  elsewhere,  it  will  not.* 

Illustrations. — The  lessee  leased  coal  mines  with  the  "nght 
to  mine,  cjiny  away,  and  dispose  of  the  "  coal  mined.  The 
lessee  having  mined  coal  which  remained  in  the  mine  just  as  it 
fell  made  nn  assignment  for  tbo  benefit  of  his  creditors.  Ildd, 
that  the  coal  was  personal  property,  and  passed  to  the  ap.sigiic'e: 
Lykens  Valley  Coal  Co.  v.  Dock,  62  Pa.  St.  232.  The  phiintifTs 
had  a  minirifj;  lease  and  raised  ore,  which  being  unwashed  was 
mixed  with  the  earth  and  left  on  the  banks  of  the  premises. 
Held,  that  replevin  would  lie  for  its  possession  unwashed  not- 
withstanding tlie  adhesion  of  the  earth:  Green  v.  Ashland  Iron 
Co.,  62  Pa.  St.  97. 

§  1347.  Manure. — Manure  is  personal  property,  where 
it  is  lying  upon  the  earth,  but  not  incorporated  with  tho 
soil.'-^  A  distinction  is  made  in  the  case  of  manure  on  a 
farm.  If  made  on  a  farm,  it  is  regarded  as  part  of  the 
realty;'^  as,  if  it  is  taken  from  the  barn-yard  of  the  home- 
stead, and  is  standing  in  a  pile  on  the  land,  although  not 
broken  up  nor  rotten,  nor  in  a  fit  state  for  incorporation 
with  tho  soil.'  In  such  cases  trover  lies  for  it,  if  severed 
from  tho  freehold  and  carried  to  other  premises.^  But 
the  character  of  personalty  is  attributed  to  manure  made 
in  a  livcry-stablo,  or  in  any  manner  not  connected  with 
agriculture,  or  not  in  a  course  of  husbandry;"  and  the 
same  lias  been  asserted  of  manure  from  a  hotel-stable, 
though  afterwards  spread  upon  the  land  in  the  usual  course 
of  husbandry.''  The  right  of  an  outgoing  mortgagor  after 
condition  broken  to  the  manure  produced  upon  a  farm 


'  Noble  V.  Sylvester,  42  Vt.  146. 

«  Piiikliam  v.  Greer,  .3  N.  H.  484; 
Haslein  v.  Lockwood,  ,37  Conn.  500;  9 
Am.  Rep.  .S30;  Flctcij'^.  v.  Herring, 
112  Mas  J.  .384. 

^  Middlebrook  ?).  Corwin,  15  Wend. 
169;  Daniels  r.  Pond,  21  Pick.  367; 
32  Am.  Dec.  2C9. 


*  Fay  V.  Muzzey,  13  Gray,  53;  74 
Am.  Dec.  619. 

"  Stone  V.  Proctor,  2  Chip.  (Vt.)  108. 

« Daniels  v.  Pond,  21  Pick.  .'572; 
32  Am.  Dec.  269;  Snow  v.  Perkins, 
60  N.  H.  49.3;  49  Am.  Rep.  333. 

'  Fay  V.  Muzzey,  13  Gray,  53;  74 
Am.  Deo.  619. 


2442 


2443 


KINDS  OP  PERSONAL  PROPERTY.   §§  1348-1350 


sarily  pass  by 

severed.     If 

1  the  land,  it 

removed  and 


with  the  "rifiht 
,1  rained.     The 

mine  just  as  it 
rcditors.  Ildd, 
to  the  apsignoe: 

The  plaintiffs 
;  unwashed  was 
f   tiie  prenuses. 

unwashed  not- 
V.  Ashland  Iron 


)roperty,  where 
(rated  with  the 
if  manure  on  a 
as  part  of  the 
pd  of  the  horae- 
d,  although  not 
r  incorporation 
or  it,  if  severed 
iremises.^    But 
[o  manure  made 
connected  with 
,ndry;"  and  the 
a  hotel-stable, 
the  usual  course 
mortgagor  after 
;ed  upon  a  farm 

-,ey,  13  Gray,  53;  74 


in  the  ordinary  course  of  husbandry  by  him  pending  tho 
mortgage,  and  while  in  possession  of  the  mortgaged 
premises,  is  to  be  determined  by  tho  rule  of  law  which 
prevails  between  mortgagor  and  mortgagee,  and  not  tliat 
Avhich  prevails  between  landlord  and  tenant.  Tho  gen- 
eral rule  that  manure  made  upon  a  farm  in  tbe  usual 
course  of  husbandry  is  so  attached  to  and  connected  with 
tho  realty  that,  in  the  absence  of  any  agreement  or  stipu- 
lation to  tho  contrary,  it  passes  as  appurtenant  to  it,  is 
applicable  to  a  mortgagor  in  possession.  lie  has  no  right 
when  vacating  the  premises  to  remove  or  sell  sucli  manure, 
but  tho  title  thereto  is  vested  in  tho  mortgagee  as  the  owner 
of  tho  freehold.* 

§  1348.  Salaries  and  Pensions.  —  The  right  to  receive 
a  salary  for  services  which  are  being  performed,  or  tho 
right  to  receive  a  pension  for  services  which  have  been 
done,  are  each  a  species  of  incorporeal  chattel  personal.' 

§  1349.  Ships  and  Vessels.  —  Ships  and  vessels  are 
chattels  personal.' 

§  1350.  Vegetables,  Pniit,  etc. — Vegetables  become 
chattels  when  they  are  severed  from  the  ground.''  Trees 
become  chattels  when  they  are  cut  down;°  so  does  turpen- 
tine from  the  tree  when  it  is  run  into  boxes."  Tlius  the 
wild  berry  when  picked  becomes  a  chattel.'  Slabs,  saw- 
dust, shavings,  and  other  refuse  used  to  fill  up  low  or 
marshy  ground  are  realty,  but  slabs  and  pieces  of  lumber 
suitable  for  fire-wood  piled  up  on  land,  and  intended  to 
be  used  and  removed  as  fire-wood,  are  personalty.^ 

*  Chase  v.  Wingate,  68  Me.  204;  28  i)urchascr:  WoodniflF/'.  Roberts,  4  La. 
Am.  Rep.  :«.  Aim.  l'J7. 

'Scliouler  on    Personal    Property,  *  Yale  t?.  Seely,  15  Vt.  221. 

sec.  G(>.  ^  Branch  v.  Morrison,  ij  Jones,  16; 

'  Sec  po<if,  Title  Ships  and  Shipping.  69  Am.  Dec.  770. 

*  1  Scliouler  on  Personal  Property,  '  Freeman  v.  Underwood,  G6  Me. 
«ec.  53.     Wood  cut  and  corded,  and  229. 

separated  from  the  laud  when  sold,  is        "  Jenkins  v.  McCurdy,  48  Wis.  628; 
movable,  and   docs   not  pass  to  tho    33  Am.  Rep.  841. 


1351,  1352      PERSONAL   PROPERTY   IN   GENERAL.         21 H 


§  1351.  Money,  and  Evidences  of  Indebtedness  — 
Papers.  —  Money  —  i.  o.,  gold  ar«l silver  and  coi)pcr  coin 
issued  by  iho  government  —  is  personal  property.'  So  is 
a  gold  coin  issued  by  a  private  person.^  So  is  paper  cur- 
rency, as  bank  notos;^  negotiable  instruments  of  any  kind;' 
or  securities  of  any  sort,  negotiable  or  not;  and,  in- 
deed,  any  valuable  paper  of  whatever  kirid  or  description; 
evidences  of  indebtedness,  as  promissory  notes/'  clurl<>," 
drafts,  or  bills  of  exchange;^  and  evidences  of  titlo, 
whether  to  things  real,  as  deeds,^  or  to  things  porsoniil, 
as  chattel  mortgages;"  certificates,'"  end  it  is  soniotinus 
held  even  shares,"  of  stock;  an  agreement  or  contract, '-' 
or  a  bond,'^  or  a  policy  of  insurance,"  railroad  stocks  an  1 
bonds,'"'  an  unlocated  land  certificate,'"  a  judgment  or 
judgment  roll,'^  an  exooution,'"  a  book  of  records;''  dncu. 
monts  and  inipcrs  of  various  kinds, as  exhibits  at  a  trial,-' 
vouchors  and  copies  of  a  creditor's  account,"*  drawinj,^^, 
manuscri])ls,  letters,  and  newspapers.^ 

§  1352.  Debts  and  Demands  not  Evidenced  by  Writ- 
ings.— The  right  to  receive  what  is  owing  one,  a  denuuid 

'  1  Schoulcr  oil  Porsoual  Property,     Am.  Rep.  282;  Voii  Scljiiiidt  <•.  Imhiui, 


sec.  t>4. 

'•«"ciuipniaa   r.    Colo,  12  Gray,   Uli 
71  Am.  Doc.  7;5'J. 


50  Ciil.  (ilG. 

"  Ayera   ?'.    French,  41  ('(iiiu.   \'A: 
Boy  Ian  v.  llugiiet,  8  Nov.  '.VWr.  Ivulhi 


SMooilyc.  Iv.'ouor,  7Port.  218.    .See    v.  McAllister,  I    Uuli,  I'T.");  r.\iio, 


also  Collin  /•.  Auilcrson,  4  Blackf.  .S9.">. 
*  Coinpoiiut  r.  Burr,  5  Blackf.  41 'J. 


*  Thoiij^li  p;ii(l:   Piorco  r.  Oibaon,  9    407. 


Elliot.  54  Cal.  339;  35    Am.  i;.  p,  80. 
Cniilm,  Neiler  r.   KcUcy,  (<'.)  l':i.   st, 


Vt.  210;  Piuk  *'.  :\IcDanicls,  37  Vt. 
594;  Spiaccr  r.  Dearth,  43  Vt.  98; 
Kingman    i\    Pierce,    17    Maaa.   247; 


'•^  Seott  V.  Jonca,  4  Taunt.  Siiri. 
1^  Bullock  V.  Ro;.,'crH,  U>  \>.  -.A. 
'*  Harding  v.  Carter,  1   I'.uk  mi  In- 


Gritfwohl  c.  Jud  1,  1  Root,  221 ;  Stewart  suraucc,  5. 

V.  Martin,  49  Vt.  2GG;  Seago?'.  Porno-  '■*  Huntzinger  r.  Pliiladoliilii.i  ('nil 

roy,  4(iGa.  2_'7;  Todd?-.  Crookshanks,  Co.,  11  Pliila.  009. 

3  Johns.  _43-J;    Nctleton  v.    Riggs,    1  "^  Porter  w.  Burnett,  00  Tex. -'•-•(». 

Root,   1-5;  iStiiphcnson  v.  Fcozer,   55  "  Hudspeth    v.     Wilson.     'J     j>iv. 

Ind.  41G;    Donuell  v.   Thompson,   13  ,S72;  21  Am.  Dec.  344;  Cahb  c.  CuniL- 

Ala.    440;    Nininger    v.    Bauuiug,    7  gay,  0  Ired.  358. 

Minn.  274.  '« Keelcr  v.  Faasett,  21  Vt.  .">;;',i;  o'l 

eTilden  v.  Brown,  14  Vt.  164.  Am.  Dec.  71. 

'  Tucker   V.  Jewett,  .32  Conn.    503;  "*  Stebbins    v.  Jenning.-t,    10    I'iik. 

Ayrea  /•.  French,  41  Conn.  151.  172;  Sudbury  v.  S^tearns,  21  I'l. ';.  148. 

8  Day  /,'.  Wiiitney,  1  Pick.  503.  ^^  Yates  v.  Pclton,  48  \t,  :)l  t. 

•Stephenson  o.  Feezer,  55  Ind.  416.  •"  r'allam  v.  Cummingj,  M  \'t.  ••'••7, 

"  And.'rson  v.  Nicholas,   28  N.  Y.  '^'^  Teall  v.  Feltou,  1    N.  Y.  :>.M;  40 

600;  Atkius  v.  Gamble,  42  Cal.  98;  10  Am.  Dec.  352. 


RAL. 


2414 


2145 


KINDS  OP  PRRSOXAL  PROPERTY. 


§  1353 


lebtednees  — 

co[)i)er  tinii 
)crty.'  So  is 
is  paper  ciir- 

of  any  kiutl;' 
\ot;  aiul,  in- 
r  descripticii; 
otcs,'*  t4uHk>,'^ 
iices  of  lillo, 
lUgs  personal, 

iri  sonietiiiU'S 
t  or  contract,'- 
)a(l  stocks  an  1 
judgment  or 
3Cortls;"  (locu- 
Dits  at  a  trial '-^ 
iit,-^  drawinijB, 

^nced  by  Writ- 
one,  a  dcniaiiil 

MiSchmiitt  '••  I'liuiii, 

!iR'li,  41  ('.mil.  I'll; 
8  Nov.  lU.'i;  Kr.h;i 
Liili,  -JT.");  r..\i'>;''. 
I;  :;5  Am.  it'  l'.  ^''^• 
KcUcy,  (-■.)  I'l.   >t, 

4  Tiinut.  SC).'). 
'crs,  H>  A't.  -'4. 
arter,  1   r.irk  .>a  In- 

riinaduli.liiii.  ('>'il 

•nctt,  (Jl)  Tux.  -'•.^(». 
WilM)i;.     -1     I'^v. 
344;  Calil*  '-.  t'"i'i^- 

isett,  21  VI.  :.::'.';  o'^ 

Junninji^,    10    y''i^\- 

team  ^,21  Tick.  MS. 

,on,  48  Vt.  :5lt. 

mmiagd,  h)  V  *■•'■''■ 

ou,  1    N.  Y.  r,;J,;4'J 


iij,'ain3t  tliG  estate  of  another,  i.s  an  important  kind  of 
incorporeal  chattel  personal.  Hero  wo  have  a  right  of 
action  against  another  for  a  hreach  of  contract,  or  for  an 
injuiy  independent  of  contract.'  In  this  class  also  fall 
the  right  to  a  legacy  or  distrihutive  share,'-  the  right  to 
nionoy  deposited  with  a  bunker,^  un  interest  in  a  partuer- 
sliij^.^ 

g  1353.  Other  Kinds  of  Chattels.— The  rolling  stock 
of  a  railroad,  such  as  its  cars  and  locomotives,  are  chat- 
tels.°  So  are  title  deeds,  alihough  so  connected  with  and 
essential  to  the  ownershij)  of  real  estate  that  they  de- 
scend with  it  to  the  heir."  The  good-wil^  of  a  businei^r;  is 
personal  property.'  A  seat  in  an  excL.inge,  transforablo 
and  of  liioney  value,  is  property.*  A  licenv  to  retail 
liquor  is  not  property."  Nor  is  a  mere  idea,  unconnected 
with  any  physical  device,  the  subject  of  ownership.*" 

Im.ustrations. — A  bill  in  equity  alleged  that  there  is  a 
custuin  of  the  trade  of  booksellers  and  publishers  in  this 
country  that  when  any  person  or  firm  engaged  in  that  busi- 
ness lias  undertaken  tlio  printing,  publication,  and  sale  of  a 
book  not  the  subject  of  statute  copyright,  and  has  actually 
printed,  published,  and  oflfcrcd  an  edition  of  such  book  to  the 
public  for  pale,  other  persons  and  firms  in  the  same  trade  re- 
frain from  entering  into  competition  with  such  publisher  by 
publLshing  a  rival  edition  of  such  book,  and  that  the  publica- 
tion of  such  book  becomes  a  pood-will  in  the  hands  of  the 
first  publisher  of  the  book.  Ildd,  that  the  alleged  good-will 
rests  ui)on  no  legal  foundation,  and  cannot  possess  any  legal 
value:  Sheldon  v.  Houghton,  5  lilatchf.  285. 

'  Boon  V.  Moss,  70  N.  Y.  405. 

8  Powell  V.  WaUlrou,  89  N.  Y.  .328; 
42  Am.  Rep.  301;  (Grocers'  liank  v. 
Murphy,  GO  How.  Pr.  420;  Ritterband 
V.  Baggett,  4  Abb.  N.  O.  07.  In  Illi- 
nois it  has  been  held  that  an  uutrans* 
ferablo  cei'tificato  of  membership  of  a 
board  of  trade  is  not  property:  Bar- 
clay t>.  Smith,  107  111.  340;  47  Am.  Rep. 
437.  So  in  Pennsylvania:  Thompson 
t\  Adams,  93  Pa.  .St.  55;  Pancoast  v. 
Gowan,  93  Pa.  St.  06. 

»  Jones  V.  Motley,  78  Ala.  .370. 

>"  Bristol  V.  Equitable  Asso.  Soc,  22 
N.  Y.  St.  Rep.  515. 


'  1  Schouler  on  Personal  Property, 
sec.  ')'.);  Ayres  v.  R.  R.  Co.,  48  Barb. 
132. 

''  1  Scliouler  on  Personal  Propeaty, 
see.  (1.1, 

•*  1  Suhouler  on  Personal  Property, 
soc.  Gl. 

*  Tuiiipcst  V.  Kilner,  2  Com.  B.  300; 
3  Dan.  .&  LI.  407. 

*  1  Schouler  on  Personal  Property, 
sec.  ,')(■):  lleardsley  r.  Ontario  Bank,  31 
Barl).  (i:54.  The  rails  are  realty:  Hart 
n  11.  II.  Co.,  7  Mo.  App.  44ti;  Hunt 
r.  Bay  State  Iron  Co.,  97  Ma.ss.  283. 

"  Wilson  V.  Rybott,  17  Ind.  391j  79 
Am.  Dec.  486. 


§  1354      PERSONAL  PROPERTY  IN  GENERAL. 


244G 


CHAPTER    LXXI. 


DESTRUCTION  OF  PERSONALTY  BY  FIRE.^ 


§  1354.  Fires  —  Liability  iu  general. 

§  1355.  In  clearing  land. 

§  1356.  Statutory  liability. 

§  1357.  Liability  of  railroad  for  causing  fires. 

§  1358.  Duty  of  railroad  as  to  construction  of  engine. 

§  1359.  Duty  of  railroad  as  to  keeping  and  management  of  engine. 

§  13G0.  Duty  of  railroad  as  to  track  and  right  of  way. 

§  13G1.  Evidence  of  negligence. 

§  1362.  Evidence  of  other  and  distinct  fires. 

S  13C3.  Contributory  negligence. 

§  13G4.  Statutory  liability. 

§  1354.  Fires  —  Liability  in  General.  —  A  pei'son  is 
not  liable  for  damage  caused  by  a  fire  which  commences 
on  his  premises,  spreading  to  the  property  of  another, 
in  the  absence  of  proof  of  some  misconduct  or  negligence 
on  his  part,^  the   burden  of  proving  which  is  on  the 


'  As  to  fire  insurance,  see  Title  Insu- 
rance, post. 

^Stuart  r.  Hawley,  22  Barb.  619; 
Calkins  i\  Barger,  41  Barb.  424;  Bar- 
nard V.  Poor,  21  Pick.  378;  Dewey  v. 
Leonard,  14  Minn.  io3;  Jordan  i\ 
Wyatt,  4Gratt.  151;  47  Am.  Dec.  720; 
Higgins  i\  Dewey,  107  Mass.  494;  9 
Am.  Rep.  03;  Grannis  r.  Cummins,  25 
Conn.  165;  McCuUy  v.  Clarke,  40  Pa. 
St.  399;  80  Am.  Dec.  584;  Miller  v. 
Maitiu,  16  Mo.  508;  57  Am.  Dec.  242; 
Fahn  v.  Reichart,  8  Wis.  255;  76 
Am.  Dec.  237;  Garrett  i\  Freeman, 
5  Jones,  78 ;  Averitt  v.  Murrell, 
4  Jones,  323 ;  Sturgis  v.  Bobbins, 
62  Me.  289;  Hewey  v.  Nourse;  54 
Me.  257;  Scott  v.  Hale,  16  Me.  326; 
Tourtellot  I'.  Rosebrook,  11  Met.  4C0, 
Maul  V.  Wilson,  2  Harr.  (Del.)  443; 
Eraser  v.  Tupper,  29  Vt.  409;  Clark  v. 
Foot,  8  Johns.  422;  Bennett  v.  Scutt, 
18  Barb.  .347;  Bachel.lcr  n  Heagan,  18 
Me.  32.  A  tenant  of  part  of  a  building, 
the  other  part  of  which  is  occupied  by 
his  landlord,  and  in  both  parts  of  which 
there  are  cliattels  of  the  landlord,  is 


liable  for  the  accidental  destruction 
oi  the  landlord's  part  and  its  contents 
by  fire,  caused  by  his  negligence  in 
heating  his  own  part;  but  lio  is  not 
liable  for  the  destruction  of  his  own 
part,  unless  he  was  recklessly  negli- 
gent; and  as  to  the  landlord's  chat 
tels  in  his  own  i)art,  it  depends  upon 
the  nature  of  his  bailment:  Lotlirop 
V.  Thayer,  138  Mass.  40u;  52  Am. 
Rep.  286.  At  connnon  law  a  person 
was  liable  for  damages  cau.sod  jjy afire 
started  by  him,  without  I'cgard  to  the 
question  of  negligence.  By  a  statute 
of  6  Anne,  c.  31,  substantially  re-en- 
acted by  14Geo.  III.,  c.  78,  it  was  pro- 
vided that  "no  action,  suit,  orjiroccss 
whatever  shall  be  had  against  any 
person  in  whose  house,  chuniber,  sta- 
ble, barn,  or  other  building,  or  on 
whose  estate  any  fire  shall,  after  the 
twenty-fourth  day  of  June,  1774,  ac- 
cidentally begin;  nor  shall  any  recom- 
pense be  macle  by  such  person  lor  any 
damage  thereby,  any  law,  usage,  or 
custom  to  the  contrary  notwithstand- 
ing."   This  statute,  it  is  held,  does 


HBC^ 


2447 


DESTRUCTION   OF   PERSONALTY   BY   FIRE.        §  1354 


plaintiff.'  The  happening  of  the  fire  or  the  destruction  of 
the  property  does  not  raise  a  presumption  of  iiogligonce.'' 
So  where  fire  is  used  for  mechanical  or  niunuracturing 
purposes,  if  used  carefully  and  with  proper  safeguards,  no 
liability  attaches  if  it  escapes  and  causes  damage.  It  is  a 
question  of  negligence.' 

To  negligently  and  carelessly  expose  one's  property  to 
fire,  or  to  so  carry  on  a  business  as  to  render  the  prop- 
erty of  one's  neighbor  liable  to  destruction  by  fire,  is  a 
nuisance,  which  will  be  enjoined  at  the  suit  of  yuch  neigh- 
bor. In  a  Scotch  case,*  the  defendant  erected  a  building 
with  a  thatched  roof,  and  used  it  as  a  smith's  forge,  in 
the  immediate  vicinity  of  the  plaintiff's  residence  and 
other  thatched  houses.  The  sparks  falling  upon  the  roofs 
from  the  chimney  constantly  exposed  the  plnintiff's  prop- 
erty to  damage  from  fire.  The  court  restrained  the  de- 
fendant from  using  his  building  for  that  purpose.  In 
another  case,'  the  defendant  was  the  owner  of  an  old 
house  which  had  for  a  long  time  been  unoccupied  and 
was  left  open,  and  had  become  a  resort  for  tramps  and 
persons  smoking  pipes  at  all  hours  of  the  day  and  night. 
Being  in  the  vicinity  of  other  buildings,  they  were  thereby 
exposed  to  imminent  danger  from  fire.  The  city  govern- 
ment directed  its  destruction  as  a  nuisance.    In  an  action 


not  include  a  fire  caused  by  negligence: 
Filliter  v.  Phippard,  11  Q.  B.  347.  It 
has  been  held  to  bo  a  part  of  the  com- 
mon law  of  New  York:  1  Thompson  on 
Negligence,  15C.  It  does  not  include 
railroads;  for  they  were  uiiknown  at 
the  time  of  its  passage:  Spaulding  v. 
R.  R.  Co.,  30  Wia.  110;  11  Am.  Rep. 
550;  Vaughan  v.  R.  R.  Co.,  3  Hurl.  & 
N.  742;  5  Hurl.  &  N.  (578. 

'  Bachelder  v.  Heagan,  18  Me.  .32; 
Sturgis  V.  RobDins,  C2  Me.  289;  Hig- 
gins  V.  Dewey,  107  Mass.  494;  9  Am. 
Kep.  C3;  Rosebrook  v.  Roaebrook,  11 
Met.  4G0;  Wood  ?-.  R.  R.  Co.,  51  Wis. 
196.  lu  an  action  against  a  ware- 
houseman for  the  loss  of  goods  by  fire, 
alleged  to  have  been  occasionr^d  by  his 
negligence,  the  burden  of  proof  is  on 


the  plaintiff  to  show  such  negligence: 
Denton  v.  R.  R.  '  '>.,  ry2  Tow.ClOl;  35 
Am.  Rep.  2G3.  The  general  charac- 
ter of  the  defendant  n:^  to  carefuhiess 
in  respect  to  fire  is  irrelevant:  8cott  o. 
Hale,  IG  Me.  32G. 

'■'Bryan  v.  Fowler,  70  N.  C.  59G; 
Catron  v.  Nichols,  SI  Mo,  80;  51  Am. 
Rep.  222.  Alilcr  as  to  lires  by  rail- 
roads: See  post. 

»  Gaggw.  Vetter,  41  lud.  228;  13  Am. 
Rep.  322;  Hinds  r.  Barton,  25  N.  Y. 
545;  Teall  v.  Barton,  40  15aib.  137; 
Hoyt  V.  Jeffers,  30  Micli.  181;  Read 
V.  Morse,  34  Wis.  315;  Burbank  r. 
Bethel,  75  Me.  .373;  4G  Am.  Rep.  400. 

*  Varney  v.  Thomson,  13  Fac.  Coll. 
491. 

*  Harvey  v.  Derwoody,  18  Ark.  252. 


§1354 


PERSONAL   PROPERTY   IN   GENERAL. 


2448 


against  the  parties  pulling  it  down,  the  court  held  that, 
by  reason  of  the  uses  to  which  the  building  was  devoted, 
and  the  danger  from  fire  therefrom  by  other  build incjs  in 
the  vicinity,  it  was  a  nuisance,  and  any  person  intcro<ited 
was  justified  in  destroying  it,  if  necessary,  to  prevent  the 
nuisance.  But  a  mere  increase  of  hazard  to  the  sur- 
rounding property  is  not  enough,  if  the  danger  is  not 
extraordinary  and  imminent.*  And  it  is  held  in  Texas  a 
question  for  the  jury  whether  the  use  of  the  property  in 
the  particular  case  really  increases  the  danger  to  the  ad- 
joining building  to  fire  more  than  would  result  from  the 
ordinary  use  of  property  for  such  purposes.'^  Keeping 
ashes  in  a  wooden  barrel,  in  violation  of  a  municipal  or- 
dinance, is  not  negligent  per  se?  But  the  fact  is  admis- 
sible on  the  question  of  negligence,  as  is  also  the  fact  that 
a  stove-pipe  which  caused  the  fire  was  put  up  in  violation 
of  a  municipal  ordinance  requiring  it  to  enter  some 
chimney,  unless  the  fire  superintendent  permit  other- 
wise.* One  is  not  necessarily  guUty  of  contributory  neg- 
ligence in  erecting  buildings  near  a  chimney  on  which 
is  a  defective  spark-arrester.* 

Illustrations.  —  M.,  having  stacked  his  hay  when  too  green, 
was  warned  by  his  neighbors  that  it  would  be  liable  to  gen- 
erate fire,  and  subsequently  seeing  it  smoke,  he  said  lie  would 
chance  it.  It  afterwards  burst  into  a  flame,  and  spread  to  V.'s 
property,  damaging  it.  Held,  that  M.  was  liable:  Vawjhaaw 
Mcnlove,  4  Scott,  244;  3  Bing.  N.  C.  404.  While  S.  was  thrash- 
ing in  a  field  with  a  steam-machine  a  high  wind  sprung  up, 
which  made  it  dangerous  to  continue.  S.,  however,  kept  on, 
and  tlio  lire  was  carried  to  an  adjoining  field,  doing  damage. 
Held,  that  S.  was  liable:  Collins  v.  Groseclose,  40  Ind.  414.    A 


'  Duncan  ?•.  Hayes,  22  N.  J.  Eq.  25. 
In  this  case,  the  plaintiff  prayed  to  en- 
join the  defendant  from  erecting  a 
steam  planing  and  saw  mill,  because  it 
exposed  her  buildings  to  fire, and  largely 
increased  the  rates  of  insurance  upon 
j^roperty  in  the  vicinity.  But  the  in- 
junction was  refused,  the  chancellor 
saying:  "I  know  of  no  precedent  for 
au  injuuctioQ  against  any  busiuesa  ou 


account  of  an  increased  risk  from  lire 

to  the  adjoining  premises." 

•^  League?'.  Jornenay,  25 Tex.  1 7-.  _ 
'  Cook  V.  Johnson,  58  Mich.  4;i(";  55 

Am.  Rep.  703. 

*  Briggs  V.  R.  R.  Co.,  7"-'  N.  Y. 
26. 

*  Alpern  v.  Churchill,  5:i  Mieh.  Ii07. 
And  see  Stone  v.  Trans.  Co.,  oS  N.  V. 
240,  as  to  contributory  negligence. 


2448 


2449 


DESTRUCTION   OP  PERSONALTY  BY   FIRE.       §  1355 


b  held  that, 
/as  devoteil, 
buildiuss  in 
in  interested 
prevent  the 
to  the  sur- 
mger  is  not 
d  in  Texas  a 
I  property  hi 
er  to  the  ad- 
sult  from  the 
SS.2     Keeping 
nunicipal  or- 
:act  is  admis- 
)  the  fact  that 
p  in  violation 
o  enter  some 
permit  other- 
^ributory  neg- 
ney  on  which 


when  too  green, 

5  liable  to  gen- 
said  he  would 
spread  to  V.'s 

le:  Vanjiiciix. 
S.  was  thi'iish- 

|ind  sprung  up, 
ever,  koi^t  on, 
doing  dainago. 
0  Ind.  414.    A 


Lsed  risk  from  lire 

lemisos.'" 

Inay,  '25Tox.  i/-'. 

Ii,  58  Midi.  ■*"•<■'  ^-^ 

ll.    Co.,   11  N-  Y. 

3hiii,  5:i  M;';''^^'^- 

Iraiis.  <-'o. ,  ;>S  N .  i-  • 
Itory  negligoiioc. 


person  goes  into  a  house  with  a  lighted  candle.  The  house  is 
poon  after  discovered  to  be  on  fire.  Held,  that  there  is  no  pre- 
sumption that  it  was  set  on  fire  by  negligence:  Lansing  v.  Stone, 
:]7  liarb.  15.  A  stove  was  left  with  its  damper  wide  open  in  a 
room  which  was  locked,  and  which  contained  oil-cans,  one  of 
which  was  on  the  stove,  and  inflammable  waste  scattered 
around  the  stove.  Held,  evidence  of  negligence:  Read  v.  A*.  R. 
Co.,  44  N.  J.  L.  280.  A  tenant  maintained  a  fire  in  a  leased 
barn,  in  a  stove,  the  pipe  passing  through  a  hole  in  the  roof,  by 
means  whereof  the  barn  was  destroyed  by  fire.  Held,  that  a 
finding  that  the  destruction  was  by  the  tenant's  fault  would 
not  be  set  aside:  Dorr  v.  Harkncss,  49  N.  J.  L.  571 ;  60  Am.  Hep. 
656.  The  defendant's  premises  and  the  plaintiff's  adjoined 
each  other,  being  separated  by  an  ordinary  partition.  The  de- 
fendant erected  in  his  house  a  cooking-range  so  near  the  parti- 
tion-wall that  the  ordinary  use  of  the  range  injured  the  goods 
in  the  plaintiflf's  store  by  reason  of  the  heat  arising  therefrom, 
and  rendered  the  plaintiff's  premises  uncomfortable.  Held/,, 
that  the  use  of  the  range  by  the  defendant  in  that  way  was  a. 
nuisance,  and  that  the  landlord  who  erected  the  range  was  liable 
for  the  injuries  resulting  therefrom,  even  though  the  premises; 
were  in  the  possession  of  a  tenant  when  the  injury  was  done. 
Grady  v.  Wolsner,  46  Ala.  381;  7  Am.  Rep.  593. 

§  1355.  In  Clearing  Land.  —  A  person  may  set  fire  to 
the  grass,  stubble,  timber,  or  other  material  on  his  land 
for  the  purpose  of  clearing  it,  and  he  is  not  liable  for  any 
injurious  consequences  that  may  ensue  to  the  property  of 
his  neighbors,  unless  he  has  also  been  guilty  of  some  want 
of  care  or  act  of  neglect.*    No  negligence  is  to  be  imputed 


1  Calkins  v.  Barger,  44  Barb.  424; 
Dewey  v.  Leonard,  14  Minn.  153; 
Miller  v.  Martin,  IG  Mo.  508;  57  Am. 
Dec.  242;  Fahn  v.  Reichart,  8  Wis. 
255;  7ti  Am.  Dec.  237;  Dean  t\  Mc- 
Cartv,  2  U.  C.  Q.  B.  448;  Gillson  r. 
R.  R.  Co.,  33  U.  0.  Q.  B.  129;  Fraser 
V.  Tapper,  29  Vt.  409;  Bachelder  v. 
Heamia,  18  Me.  32;  Clark  v.  Foot,  8 
Johns.  422;  Bennett  v.  Scutt,  18  Barb. 
347;  Stuart  v.  Hawley,  22  Barb.  619; 
De  France  v.  Spencer,  2  G.  Greene, 
4G2;  52  Am.  Dec.  5,33;  Hewey  v. 
Nourse,  54  Me.  256,  the  court  saying: 
"Every  person  has  a  right  to  kindle 
fire  on  his  own  land  for  the  purposes 
of  husbandry,  if  he  does  it  at  a  proper 
time  and  in  a  suitable  maiuaer,  aud 


uses  reasonable  care  and  diligence  to 
prevent  it  spreading  and  doing  injury 
to  the  property  of  others.  Tlie  time 
may  be  suitable  and  the  manner  pru 
dent,  and  yet,  if  he  is  guilty  of  negli- 
gence in  taking  care  of  it,  and  it 
spreads  and  injures  the  property  of 
another  in  consequence  of  sucn  negli- 
gence, he  is  liable  in  damages  for  the 
mjurydone.  The  gist  of  the  action  is 
negligence,  and  if  that  exists  in  either 
of  these  particulars,  and  injury  is  done 
in  consequence  thereof,  the  liability 
attaches;  and  it  is  immaterial  whether 
the  proof  establishes  gross  negligence 
or  only  a  want  of  ordmary  care  on  the. 
part  of  the  defendant. "  A  lessor  of. 
land  $Qbo  wock^dou  shares,  the  leasee 


§  1355     PERSONAL  PROPERTY  IN  GENERAL. 


2450 


to  him  because  he  did  not  anticipate  a  whirlwind  which 
arose  suddenly  and  carried  the  fire  beyond  his  control.' 
But  if  one  is  guilty  of  negligence  in  setting  out  fire,  or  in 
his  attempted  control  of  it,  it  is  immaterial  whether  he 
was  diligent  or  negligent  in  attempting  to  save  the  de- 
stroyed property  by  backfiring,  if  in  any  event  such  prop- 
erty would  have  been  destroyed.^ 

Illustrations.  —  H.  set  out  a  fire  for  the  purpose  of  clearing 
his  land,  the  weather  being  warm  and  the  land  dry.  It  spread, 
however,  to  the  plaintiff's  land.  Held,  that  II.  was  not  liable: 
Stuart  V.  Haivley,  22  Barb.  619.  B.  started  a  fire  on  his  farm, 
and  left  it  apparently  safe;  an  unlooked  for  change  in  tlie 
weather  ensued;  a  strong  wind  sprang  up,  and  carried  the  fire 
to  the  adjoining  premises.  Held,  that  B.  was  not  liable:  Calk- 
ins V.  Barger,  44  Barb.  424.  A  kindled  a  fire  on  his  land, 
and  attempted  to  extinguish  it  on  the  same  day,  but  the  fire, 
continuing  to  burn  smolderingly  in  the  soil  of  a  slough  until 
two  days  later,  broke  out  afresh,  and  ran  upon  B's  land.  Held, 
that  if  A  was  negligent  in  kindling  the  fire,  he  was  not  excused 
from  liability  to  B  because  he  could  not  have  foreseen  by  ordi- 
nary care  that  the  fire  would  start  again:  Krippner  v.  Biebl,  28 
Minn.  139.  H.,  on  the  morning  of  a  very  dry  day,  set  fire  to  a 
heap  of  logs  within  five  yards  of  his  neighbor's  fence,  a  dead 
pine-tree  and  much  combustible  matter  being  between  the  log- 
pile  and  the  fence.  The  fire  spread  to  his  neighbor's  property. 
Held,  that  H.  was  liable:  Garrett  v.  Freeman,  5  Jones,  78. 
L.,  in  an  unusually  dry  summer  season,  set  fire  to  logs  on  his 
fallow,  adjoining  the  woodland  of  H.;  the  fallow  and  the  wood- 
land were  both  covered  with  combustible  matter;  the  day  before 
the  fire  was  set,  there  had  been  a  heavy  shower,  but  it  after- 
ward became  dry  and  hot,  and  a  high  wind  carried  the  fire  to 
the  land  of  H.  Held,  that  L.  was  liable:  Hays  v.  Miller,  6 
Hun,  322;  70  N.  Y.  112.  C,  while  driving  a  herd  of  sheep 
through  the  country,  encamped  near  plaintiff" 's  premises,  and 
started  a  fire  near  his  house  and  barn;  there  was  a  quantity  of 
dry  brush  and  other  material  scattered  around;  C.  continued 
his  journey  without  extinguishing  the  fire.  Held,  that  C.  was 
liable:  Cleland  v.  Thornton,  43  Cal.  437.  J.,  having  given  the 
plaintiff"  permission  to  cut  wood  on  his  land,  started  a  fire  very 


to  clear  a  portion  at  a  specified  price, 
is  not  liable  to  an  adjoining  owner 
for  damages  from  fires  kindled  by  the 
lessee  in  clearing:  Ferguson  v.  Hub- 
beU,  26  Hun,  250. 


•  Sweeney  v.  Merrill,  38  Kan.  216; 
6  Am.  St.  Rep.  734. 

»  Sweeney  v.  Merrill,  38  Kan.  210; 
SAm.  St.  Rep.  734. 


2450 


2451 


DESTRUCTION   OP   PERSON.VLTY   BY   FIRE. 


§  1357 


Lwind  which 

his  control.' 

)ut  fire,  or  in 

whether  he 

save  the  de- 
nt such  prop- 

[)0S6  of  clearing 
try.     It  spread, 
was  not  liable: 
re  on  his  farm, 
change  in  the 
carried  the  lire 
lot  liable:  Calk- 
re  on  his  land, 
ty,  bnt  the  fire, 
f  a  slough  until 
B's  land.    Held, 
was  not  excused 
foreseen  by  ordi- 
ppner  v.  Biebl,  28 
•  day,  set  fire  to  a 
,r's  fence,  a  dead 
between  the  log- 
ghbor's  property. 
lan^  5  Jones,   i8. 
fire  to  logs  on  his 
ow  and  the  wood- 
ter;  the  day  before 
wer,  hut  it  after- 
jarried  the  fire  to 
Hays  V.  Miller,^ 
a  herd  of  sheep 
f  s  premises,  and 
!  was  a  quantity  o 
und;  C.  continued 
Held,  that  C.  vras 
.,  having  given  tbe 
started  a  fire  very 

Merrill,  38  Kan.  216; 

M*rriU.  38  Kan.  2lCi 
,734. 


near  one  of  his  piles,  which  escaped  from  his  control  and  con- 
puniod  it.  Held,  that  the  plaintiff  was  responsible:  Jordan  v. 
Wyatt,  4  Gratt.  151;  47  Am.  Doc.  720.  H.  intending  to  burn  up 
the  brush  on  his  own  land,  set  fire  to  it  within  six  feet  of  the 
plaintiff's  land,  which  was  also  covered  with  brush.  The  fire 
spread  to  the  plaintiff's  land.  Held,  that  H.  was  liable:  Hig- 
ginsv.  Dewey,  107  Mass.  494;  0  Am.  Rep.  G3. 

§  1356.  Statutory  Liability.  —  In  some  states  by  stat- 
ute an  absolute  liability  is  created  under  some  circum- 
stances.^ In  North  Carolina,  written  notice  must  first  be 
given  of  the  intention  to  start  a  fire  on  the  land.^  In 
Illinois,  Kansas,  and  Missouri  no  woods,  marshes,  or 
prairies  may  be  set  on  fire  except  in  case  of  necessity.* 

§  1357.    Liability  of  Railroads  for  Causing  Fires.  —  In 

the  absence  of  charter  authority,  it  would  seem  that  a 
person  or  corporation  running  a  locomotive  through  city 
or  county  should  be  liable  for  all  damage  caused  by  the 
escape  of  fire  therefrom.*  This  was  the  view  taken  by  the 
English  court  of  exchequer,  when,  the  question  present- 
ing itself  for  the  first  time,  it  was  held  by  that  tribunal 
that  as  accidents  occasionally  arise  from  the  use  of  fire 
as  a  means  of  propelling  engines  on  railroads,.the  hap- 
pening of  such  accidents  must  be  taken  to  be  the  nat^ural 
and  necessary  consequence  of  the  use  of  fire  for  such  pur- 
pose, and  that,  therefore,  railroad  companies,  by  using 
fire,  are  responsible  for  any  accident  which  may  result 
from  its  use,  although  they  have  taken  every  precaution 
in  their  power.®  On  appeal  to  the  court  of  exchequer 
chamber,  this  ruling  was,  however,  reversed,  and  the  doc- 


1  ilissouri:  1  Wagner's  Stats.  638; 
Illinois:  Rev.  Stats.  1879,  sec.  158; 
North  Carolina:  Rev.  Code,  c.  IG, 
sec.  2;  Iowa:  Comm.  v.  May,  36  Iowa, 
241;  Connecticut:  Ayer  r.  Starkey,  30 
Conn.  804;  Grannis  v.  Cummings,  25 
Conn.  Km. 

'  L.unlj  V.  Sloan,  94  N.  C.  534.  But 
the  adjoining  owners  may  waive  the 
notice:  Iloberson  r.  Kirby,  7  Jones, 
477;  Jordan  v.  Lassiter,  6  Jones,  130. 


'  See  Johnson  v.  Barber,  10  Hi.  425; 
50  Am.  Pec.  416;  Burton  v.  McClel- 
laii,  3  111.  434;  Hunt  v.  Haines,  25 
Kan.  210. 

*  Jones  V.  R.  R.  Co.,  L.  R.  3  Q.  B. 
735;  Hammersmith  R.  R.  Co.  v.  Brand, 
L.  R.  4  H.  L.  171;  Mosheru.  11.  R.  Co., 
8  Barb.  427. 

'•'  Vaughan  v.  &  9l.  Co.,  3  Hurl,  & 
N.  742. 


§;  1357      PERSONAL  PROPERTY  IN  GENERAL. 


2452 


trino,  now  undisputed  both  in  England  and  America, 
established,  that  when  the  legislature  has  sanctioned  and 
authorized  the  use  of  a  particular  thing,  and  it  is  used 
for  the  purpose  for  which  it  was  authorized,  and  every 
reasonable  precaution  is  observed  to  prevent  'injury,  the 
sanction  of  the  legislature  carries  with  it  this  consequence: 
that  if  damage  result  from  the  use  of  such  thing,  the  party 
using  it  is  not  responsible.*  Therefore,  in  the  case  of 
railroads  authorized  to  propel  their  cars  by  steam,  the 
gist  of  their  liability  for  injuries  caused  by  the  escape  of 
fire,  it  is  now  well  settled,  is  negligence.''  The  railroad, 
to  excuse  itself  from  liability,  must  show  that  due  and 
reasonable  care  proportionate  to  the  danger  was  used  to 
avoid  the  injury.'  Where  a  railroad  company  is  required 
by  law  to  permit  other  trains  to  run  over  its  line,  and  it 
permits  an  engine  not  belonging  to  itself  to  un  which 
is  so  negligently  constructed  as  to  be  dangerous  to  ad- 
joining property,  the  company  will  be  liable  for  injuries 
occasioned  by  it.'*  If  fences  are  burned,  the  railroad 
company  is  liable  for  a  loss  to  crops  caused  by  animals 


1  Vaughan  v.  R.  R.  Co.,  5  Hurl.  & 
N.  (378. 

^  R.  V.  Pease,  4  Barn.  &  Adol.  30; 
State  V.  Tupper,  Dudley,  135;  King 
V.  K.  R.  Co.,  18  N.  J.  Eq.  397;  Ham- 
mersmith R.  R.  Co.  V.  Brand,  L.  R.  4 
H.  L.  171;  ^Jdridge  v.  R.  R.  Co.,  3 
Man.  &  G.  517;  Piggot  v.  R.  R.  Co., 
3  Com.  B.  229;  Illinois  etc.  R.  R.  Co. 
V.  IVUlls,  42  111.  407;  Railroad  Co.  v. 
Yeiser,  8  Pa.  St.  366;  Frankford  etc. 
Turnpike  Co.  v.  R.  R.  Co.,  54  Pa.  St. 
345;  93  Am.  Dec.  708;  Philadelphia 
etc.  R.  R.  Co.  V.  Yerger,  73  Pa.  St. 
^31 ;  Indiana  etc.  R.  R.  Co.  v.  Para- 
more,  31  Ind.  143;  Huyett  v.  R.  R. 
Co.,  23  Pa.  St.  373;  Jackson  v.  R.  R. 
Co.,  31  Iowa,  176;  7  Am.  Rep.  120; 
Kansas  etc.  R.  R.  Co.  v.  Butts,  7 
Kan.  308;  Ellis  v.  R.  R.  Co.,  2  Ired. 
140;  Pittsburg  etc.  R.  R.  Co.  v.  Cul- 
ver, 60  lud.  469;  Morris  etc.  R.  R. 
Co.  V.  State,  36  N.  J.  L.  553;  Mc- 
Cready  r.  R.  R.  Co.,   2  Strob.  356; 


Burroughs  v.  R.  R.  Co.,  15  Conn.  124; 

38  Am.  Dec.  64;  Miller  v.  R.  R.  Co., 
9  Hun,  194;  Home  Insurance  Co.  v. 
R.  R.  Co.,  11  Hun,  182;  McHugh  y, 
R.  R.  Co.,  41  Wis.  78;  Woodson  v. 
R.  R.  Co.,  21  Minn.  60;  Leavenworth 
etc.  R.  R.  Co.  V.  Cook,  18  Kan.  2()1; 
Slosson  V.  R.  R.  Co.,  52  Iowa,  92; 
Atchison  etc.  R.  R.  Co.  v.  Riggs,  31 
Kan.  622;  Missouri  Pacific  R.  R.  Co. 
V.  R.  R.  Co.,  31  Fed.  Rep  ^>^x 
Lowney  v.  R.  R.  Co..  7S  '        'VD 

3  Smith  V.  R.  R.  Co..  ]  i 
Fero  V.  R.  R.  Co.,  22  N.  i'  :.'! 
V.  R.  R.  Co.,  49  N.  Y.  V.'O 
Rep.  389;  Michigan  etc.  ii 
Anderson,  20  Mich.  244;  Pierce  y.  R. 
R.  Co.,  105  Mass.  199;  Chicago  etc. 
R.  R.  Co.  V.  Quaintance,  58  Hi.  387; 
Frankford  etc.  Turnpike  Co.  ik  R.  R. 
Co.,  54  Pa.  St.  345;  93  Am.  Dec.  708; 
Kellogg  V.  R.  R.  Co.,  94  U.  S.  4G9. 

*  Delaware  etc.  R.  R.  Co.  v.  Salmon, 

39  N.  J.  299;  23  Am.  Bep.  214. 


^  ,:z; 
■J  Am. 


MRtRS 


■SBB 


2452 

[  America, 
itioned  and 
[  it  is  used 
,  and  every 
injury,  the 
msequence: 
g,  the  party 
the  case  of 

steam,  the 
tie  escape  of 
'he  railroad, 
lat  due  and 
was  used  to 
f  is  required 

line,  and  it 
o  un  which 
erous  to  ad- 

for  injuries 
the  railroad 

by  animals 

o.,  15  Coun.  124; 

er  V.  R.  H.  Co., 

nsurance  Co.  v. 

182;  MoHugh  v. 

78;   Wooilsou  I'. 

GO;  Leavenworth 

ok,  18  Kan.  2t)l; 

X,   52   Iowa,  92; 

Co.  V.  Rigs?'*,  31 

Pacific  R.  K.  Co. 

Fed.    Rc-r     rv:;6; 

3..  7S  ■'■■  '  «V2 

Cr,.,  i  ^  !•"   ;•  .;'!; 

N.  i'  ''  .  '*'ebb 
Y.  ^,'JO  ■  J  Am. 
etc.  R  Co.  I'. 
244;  Pierce  v.  R. 
99;  Chicago  etc. 
,nce,  58  111.  387; 
pike  Co.  I'.  R-  R- 
93  Am.  Dec.  708; 
,  94  U.  S.  409. 
R,  Co.  V.  Salmon, 
Bep.  214. 


2453  DESTRUCTION  OP   PERSONALTY   BY   FIRE.       §  1358 

getting  at  them,  plaintiff  having  made  reasonable  efforts 
to  prevent  the  loss.' 

§  1358.  Duty  of  Railroad  —  As  to  Constniction  of  En- 
gine. —  In  the  construction  of  its  engine  or  locomotive 
so  as  to  prevent  the  escape  of  fire,  the  railroad  company 
is  required  to  provide  itselfwithallthe  precautions  which 
is  within  its  means,  and  which  science  and  invention 
have  offered.*  This  must  be  restricted,  however,  to  the 
most  improved  machinery  which  is  practicable,  and  not 
anything  which  mechanical  skill  and  ingenuity  can  de- 
vise, whether  known  or  not,  or  able  to  be  obtained  or  not. 
An  instruction  that  the  defendant  was  guilty  of  negligence, 
"  unless  provided  with  all  the  means  and  appliances  which 
science  has  discovered  to  prevent  the  escape  of  fire,"  is 
erroneous.*  A  private  person  or  a  railroad  company  is  not 
bound  to  purchase  a  patent  for  every  invention  which  is 
claimed  to  be  an  improvement.  To  be  approved,  such 
appliances  must  be  shown,  both  by  use  and  the  experience 
of  men,  to  be  superior  and  effectual.^     But  if  a  particular 


1  Miller  v.  R.  R.  Co.,  90  Mo.  389. 

^  In  several  cases  expert  testimony 
has  been  given  to  the  effect  that  by 
the  use  of  proper  appliances  the  escape 
of  sparks  from  a  locomotive  is  impos- 
sible: Anderson  v.  Cape  Fear  S.  Co., 
64  N.  C.  399;  Steinweg  v.  R.  R.  Co., 
43  N.  Y.  123;  3  Am.  Rep.  G73;  Case 
r.  R.  R.  Co.,  59  Barb.  644;  Dimmock 
V.  R.  R.  Co.,  4  Fost.  &  F.  1058;  Long- 
abaugh  V.  R.  R.  Co.,  9  Nev.  271; 
Longman  v.  Canal  Co.,  3  Fost.  &  F. 
73C;  Crist  v.  R.  R.  Co.,  1  Thomp.  &  C. 
435.  And  in  Piggot  v.  R.  R.  Co.,  3 
Com.  B.  228,  Maule,  J.,  said:  "The  evi- 
dence, I  thiidt,  shows  that  it  is  perfectly 
practicable  to  adopt  precautions  that 
will  render  such  accidents  next  to  im- 
possible, by  traveling  at  a  rate  of  speed 
or  with  a  load  proportioned  to  the  power 
of  the  engine.  ' '  Exi)erience  has  dem- 
onstrated," says  Scott,  J.,  iu  Chicago 
etc.  R.  R.  Co.  V.  Quaintance,  68  111. 
38i),  "that  railway  companies,  by  the 
use  of  certain  mechanical  inventions 
and  oootrivances,   caa   prevent   the 


emission  of  fire-sparks  from  locomo- 
tive-engines in  such  quantities,  at 
least,  as  would  not  be  at  all  danger- 
ous to  property  in  the  immediate 
proximity."  In  Small  v.  R.  R.  Co.,  6 
Cent.  L.  J.  310,  Beck,  J.,  says:  "  We 
are  of  opinion  that  contrivances  may 
be  applied  to  engines  that  would  prove 
just  as  effectual  in  preventing  the  es- 
cape of  lire  as  a  fence  is  iu  preventing 
cattle  going  upon  a  railroad  track. 
Whether  such  contrivances  are  iu  use 
we  know  not,  and  it  is  not  important 
to  inquire;  that  they  may  be  appliad 
cannot  be  doubted,  when  we  contem- 
plate the  resources  which  science  brings 
to  the  aid  of  machinists.  At  all  events, 
the  law,  in  holding  railroad  companies 
liable  for  damage  resulting  from  fires 
set  out  by  their  engines,  presumes 
they  may  prevent  injuries  in  thftt 
way." 

»  Read  v.  Morse,  34  Wis.  315. 

♦  Spaulding  v.  R.  R.  Co.  30  Wis. 
110;  II  Am.  Rep.  550;  Toledo  etc.  £. 
R.  Co.  V.  Pindar,  53  111.  447;  5  Ajn. 


1359 


PERSONAL   PROPERTY   IN   GENERAL. 


2454 


safeguard  has  been  tested,  and  found  to  meet  the  purpose, 
the  railroad  is  required  to  adopt  it.*  And  on  the  other 
hand,  if  the  company  has  taken  all  practicable  precau- 
tions that  science  and  invention  could  suggest  and  the 
circumstances  would  permit,  it  is  free  from  negligence  ia 
this  respect,  and  is  freed  from  liabilty.^ 

§  1359.  As  to  Keeping  and  Management  of  Engine. 
—  The  railroad,  to  escape  liability,  must  also  show  that  at 
the  time  of  the  injury  the  locomotive  was  in  good  order, 
and  being  properly  man^iged  by  competent  persons.^  A 
railroad  is  required  to  use   greater  care  in  running  its 


Rep.  57;  Frankford  etc.  Turnpike  Co. 
V.  R.  R.  Co.,  54  Pa.  St.  345;  93  Am. 
Dec.  708;  Anderson  v.  Cape  Fear  S. 
Co.,  04  N.  C.  399;  St.  Louis  etc.  R. 
R.  Co.  V.  Gilham,  39  111.  455;  Longa- 
baugh  V.  R.  K.  Co.,  9  Nev.  271;  Be- 
vier  V.  R.  R.  Co.,  13  Hun,  254;  Hoyt 
V.  Jefl'ers,  30  Mich.  181;  Stoinweg  v. 
R.  R.  Co.,  43  N.  Y.  123;  3  Am.  Rep. 
673. 

»  Toledo  etc.  R.  R.  Co.  v.  Corn,  71 
111.  493;  Gagg  v.  Votter,  41  Iiid.  228; 
13  Am.  Rep.  322;  Fremantle  v.  R.  R. 
Co.,  2  Fost.  &  F.  340;  Lackawanna 
etc.  R.  R.  Co.  V.  Doak,  52  Pa.  St.  379; 
91  Am.  Dec.  166. 

■'  Vivughan  v.  R.  R.  Co.,  5  Hurl.  & 
N.  679;  Kansas  etc.  R.  R.  Co.  v.  Butts, 
7  Kan.  308;  Burke  v.  R.  R.  Co.,  7 
Heisk.  451;  19  Am.  Rep.  618;  Rood 
V.  R.  R.  Co.,  18  Barb  80;  Phila.  etc. 
R.  R.  Co.  V.  Hendrickson,  80  Pa.  St. 
182;  21  Am.  Rep.  97;  Burlington  etc. 
R.  R.  Co.  V.  Westover,  4  Neb.  268; 
Jefferies  v.  R.  R.  Co.,  3  Houst.  447; 
Illinois  etc.  R.  R.  Co.  v.  McClel- 
land, 42  111.  355;  Frankford  etc. 
Turnpike  Co.  v.  R.  R.  Co.,  54  Pa. 
St.  345;  93  Am.  Dec.  708;  Bal- 
timore etc.  R.  R.  Co.  V.  Woodruflf,  4 
Md.  242;  59  Am.  Dec.  72;  Hoff  v.  R. 
R.  Co.,  45N.  J.  L.  201.  "If  there 
was  known  and  in  use  any  apparatus 
whicli  applied  to  an  engine  would 
enable  it  to  consume  its  own  sparks, 
and  thus  prevent  the  emission  of  them, 
to  the  consequent  ignition  of  com- 
bustible property,  it  was  negligent  if 


it  did  not  avail  itself  of  such  appara- 
tus. But  it  was  not  bound  to  use 
every  possible  precaution  which  tlio 
highest  scientific  skill  might  liavo. sug- 
gested, nor  to  adopt  an  untried  ma- 
chico  or  mode  of  construution " ; 
Steinweg  v.  R.  R.  Co.,  43  N.  Y.  123; 
3  Am.  Rep.  673.  "If  the  company,  by 
availing  itself  of  all  the  discoveries 
which  science  and  experience  have  put 
within  its  reach,  could  have  construct- 
ed its  machinery  so  perfect  as  to  pre- 
vent the  emission  of  sparks  or  tho 
dropping  of  coal,  and  if  the  niacliiii- 
ery  useclin  this  case  was  not  so  perfect 
as  to  accomplish  this  purpose,  tliu  fact 
that  the  machinery  used  was  such  as 
was  in  common  and  general  use,  aiul 
had  been  approved  by  experience,  dij 
not  relieve  the  appellant  from  liabil- 
ity " :  Pittsburgh  etc.  R.  R.  Co.  v. 
Nelson,  51  lud.  150. 

»  Dimmock  v.  R.  R.  Co.,  4  Fost.  & 
F.  1058;  Hinds  v.  Barton,  25  N.  Y. 
544;  Toledo  etc.  R.  R.  Co.  v.  Wand, 
48  Ind.  476;  Baltimore  etc.  R.  11.  Co. 
V.  Dorsey,  37  Md.  19;  Chicago  etc.  R. 
R.  Co.  V.  Quaintance,  58  111.  589;  Chi- 
cago etc.  R.  R.  Co.  V.  Claiiipit,  G3  111. 
95;  Wilson  v.  R.  R.  Co.,  16  S.  C.  587. 
An  engine  became  out  of  repair  at  a 
point  on  the  line  where  thero  were  no 
facilities  for  repairing.  Held  not  to 
authorize  defendant  to  run  tho  engine 
with  increased  danger  to  the  next 
repair-shop,  but  to  necessitate  stop- 
ping at  the  next  station:  Texas  etc. 
R,  R.  Co.  V.  Tankersley,  63  Tex.  57. 


Liagj 


2455 


DESTHUCTION   OP   PERSONALTY   BY  FIRE.       ^  1359 


trains  through  villages,  whore  wooden  buildings  arc  so  near 
its  road  as  to  be  exposed  to  fire  from  locomotives,  than, 
in  the  open  country.'  Proof  that  its  engines  were  prop- 
erly constructed  and  equipped,  and  were  carefully  in- 
spected by  a  competent  person  every  other  day,  and  found 
to  be  in  good  order,  will  rebut  the  presumption  of  i.eglr- 
gence,  even  though  the  inspection  is  not  shown  to  havo 
continued  down  to  the  moment  when  the  fire  ornjaped.^ 
But  this  must  be  proved  by  direct  evidence,  not  by  a 
usage  to  this  effect.*  Overloading  the  locomotive  is  negli- 
gence.'* Negligence  may  be  inferred  from  using  wood  in 
a  coal-burning  engine,^  or  from  carrying  more  steam  than, 
necessary,  whereby  an  undue  quantity  of  sparks  are 
emitted.  But  a  railroad  company  has  a  right  to  use  the 
fuel  in  ordinary  use;  and  it  is  not  liable  for  using  an  in- 
ferior quality,  unless  its  use  was  known  to  be  hazardous.® 
Running  at  a  greater  rate  of  speed  than  allowed  by  statute 
is  negligence.'  Failing  to  use  a  spark-arrester  is  negli- 
gence 'per  se.^ 

The  following  have  been  held  not  to  amount  to  negli- 
gence on  the  evidence:  Putting  an  undue  amount  of  coal 
into  the  fire-box,  and  running  backwards  and  forwards 


>  Foro  V.  R.  R.  Co.,  22  N.  Y.  209; 
78  Am.  Dec.  178, 

2  Baltimore  etc.  R.  R.  Co.  v.  Ship- 
ley, 39  Md.  251. 

'Baltimore  etc.  R.  R.  Co.  v.  Ship- 
ley 39  Md.  251.  But  see  Chicago  etc. 
R.  R.  Co.  V.  Quaintance,  58111.  389. 

*  Toltido  etc.  R.  R.  Co.  v.  Pindar, 
53111.  447;  5  Am.  Rep.  57. 

^  St.  Joseph  etc.  R.  R.  Co.  v.  Chase, 
11  Kau.  47;  Chicago  etc.  R.  R.  Co.  v. 
Quaintance,  58  III.  389. 

« Collins  V.  R.  R.  Co.,  5  Hun, 
499. 

'Martin  v.  R.  R.  Co.,  23  Wis.  437; 
99  Am.  Dec.  189. 

*  Audcvsonw.  Steamboat  Co.,  64  N.  C. 
399;  Bedell  v.  R.  R.  Co.,  44  N.  Y. 
367;  4  Am.  Rep.  688;  Piggot  v.  R. 
R.  Co.,  3  Com.  B.  229;  Brighthope 
R.  R.  Co.  V.  Rogers,    76   Va.   443; 


Searles  v.  R.  R.Co.,  49  N.  Y.Sup.  Ct. 
425.  In  some  cases  this  hr.a  I  icon  held 
a  question  of  fact  for  the  j.uy:  Fre- 
mantle  v.  R.  R.  Co.,  10  Com.  JJ.,  N.  S., 
89;  Kellogg  v.  R.  R.  Co.,  i)t  U.  S. 
470;  I  Cent.  L.  J.  278;  Ij^okawanna 
etc.  R.  R.  Co.  V.  Doak,  fr^  Pa.  St. 
379;  91  Am.  Dec.  166;  Algicr  v.  The 
Maria,  14  Cal.  167;  Toledo  etc.  R.  R. 
Co.  V.  Pindar,  53  IH.  447;  5  Am.  Rep. 
57;  Gerke  v.  Navigation  Co.,  9  Cal. 
2^;  70  Am.  Dec.  650;  Crandall  v. 
Goodrich  Trans.  Co.,  16  Fed.  Rep. 
75.  A  municipal  ordinance)  forbid- 
ding the  running  of  any  steamboat 
without  a  spark-arrester  to  prevent 
the  escape  of  sparks  "  as  cfFectually 
as  the  same  can  be  prevonUd  by  any 
means  known  or  in  use  "  is  unreason- 
able: Atkinson  v.  Trans.  Co.,  60  Wis. 
141;  60  Am.  Rep.  352. 


13C0 


PERSONAL  PROPERTY   IN  GENERAL. 


245G 


while  nt  a  water-station;*  shutting  off  steam,^  and  omit- 
ting  steam  through  the  smoke-stack.' 

And  the  defendant  may  hecomo  liahlo  for  failing  to 
extinguish  the  fire.  In  a  Missouri  case,  where  a  fire,  started 
from  a  locomotive  on  the  defendant's  right  of  way,  was 
seen  hy  employees  of  the  company  in  time  to  have 
extinguished  it  before  it  had  gone  very  far,  and  they,  not- 
withstanding this,  permitted  it  to  burn,  whereby  it  spread 
to  and  consumed  the  plaintiff's  promises,  the  company 
was  held  liable,  although  the  escape  of  the  fire  from  tlio 
locomotive  was  accidental  and  without  negligence.'*  So 
where  sparks  from  a  construction  train  set  fire  to  com- 
bustibles on  the  track,  which,  spr-^ading,  burned  tho 
plaintiff's  property,  and  the  defendant's  servants  on  tho 
train,  though  having  notice  of  the  fire,  did  not  stop  and  at- 
tempt to  extinguish  it,  the  defendant  was  hekl  responsible. 
Had  the  train  been  a  passenger  train,  it  was  said  tho 
duty  might  not  have  been  the  same.^  So  the  comi)any 
is  liable  for  an  injury  caused  by  a  burning  brand  being 
thrown  from  a  passing  locomotive.® 

§  1360.  As  to  Track  and  Right  of  Way.  —  Tlie  rail- 
road is  bound  to  keep  its  track  and  contiguous  land  clear 
of  materials  likely  to  be  ignited  from  sparks  issuing  from 
its  locomotives;  and  neglect  in  this  respect  will  make  it 
liable,  even  though  its  appliances  were  proper,  and  though 
it  wore  guilty  of  no  negligence  in  allowing  the  firo  to  es- 
cape.^    A  railroad  company  is  not  bound  to  keep  a  patrol 


•  Pliiladclphia  etc.  R.  R.  Co.  v. 
Yerger,  73  Pa.  St.  121. 

^  Burke  V.  R.  R.  Co.,  7  Heisk.  451; 
19  Am.  Rep.  GI8. 

"  Kellogg  ('.  R.  R.  Co.,  1  Cent.  L. 
J.  271). 

♦  Kinney  v.  R.  R.  Co.,  63  Mo.  99; 
Bas^)  r.  R.  R.  Co.,  28  111.  9;  81  Am. 
Dec.  2'A,  —  a  similar  case. 

^  Reelke  v.  R.  R.  Co.,  26  Wis.  537. 

6  McCouu  V.  R.  R.  Co.,  66  Barb. 
338;  Mobile  etc.  R.  R.  Co. «.  Gray, 
62  Mias.  383. 


^  Troxler  v.  R.  R.  Co.,  74  X.  C.  :577: 
Flynn  v.  R.  R.  Co.,  40  Cal.  U;  15  Am. 
Rep.  595;  Salmon  v.  R.  R.  Co.,  'AH  N. 
J.  L.  5;  20  Am.  Rep.  356;  Delaware  etc. 
R.  R.  Co.  V.  Salmon,  39  N.  .1.  1..  i"jy; 
23  Am.  Rep.  214;  Kellogg  ,u  R.  R.  Co., 
26  Wis.  223;  7  Am.  Rep.  GO;  Toledo 
etc.  R.  R.  Co.  V.  Waud,  48  Ind.  47(i; 
Burlington  etc.  R.  R,  Co.  v.  Westovur, 
4  Neb.  268;  Henry  v.  R.  R.  Co.,  50  Cal. 
176;  Pittsburg  etc.  R.  R.  Co.  v.  Nel- 
sou,  51  Ind.  150;  Richmond  etc.  R.  R. 
Co.  V.  Medley,  75  Va.  499;  40  Am. 


245G 


2457 


DESTRUCTION   OF   PERSONALTY   BY   FIRE.        §  13G0 


^  and  emit- 

r  failing  to 
,  fire,  started 
of  way,  waa 
mo  to  havo 
id  they,  not- 
'by  it  spread 
.10  company 
iro  from  tlio 
igencc.'*     So 
fire  to  com- 
burncd  the 
vants  oil  the 
t  stop  and  ut- 
l  responsible. 
vas  said  the 
lie  company 
brand  being 


—  Tlie  rail- 
US  land  cloiu" 
issuing  tVoin 
will  make  it 
',  and  though 
he  fire  to  es- 

eop  a  patrol 

Co.,  74  X.  I".  :57T! 

10  Cal.  14;  li  Am, 
11.  R.  Co.,  -M  N. 
56;  Delauan; etc. 

39  N.  J.  L.  -iliy; 

oggc.  11.  H-  t^'O'i 

Kop.  G'J;  Toledo 
,u(l,  48  Iiul.  47t); 

Co.  V.  Westovur, 
R.  R.  Co.,  50  Cal. 
I.  R.  Co.  V.  Nel- 
hmond  etc.  K.  R- 
la..  499j  40  Am. 


on  tho  track  to  guard  against  or  extinguish  fires.'  But 
it  is  competent  evidence,  bearing  on  tho  qncblion  of  neg- 
ligence, that  after  the  fire  more  men  were  employed  by 
the  company  to  walk  and  watch  tho  track  than  were  em- 
ployed when  tho  damage  occurred.'^  A  railroad  company 
has  tho  right  to  keep  at  its  stations  such  supplies  of  wood 
as  are,  in  its  judgment,  necessary  for  its  present  or  future 
use,  and  it  is  not  liable  for  any  ii;jury  caused  by  the  acci- 
dental burning  thereof,  unless  it  results  from  tho  care- 
lessness of  tho  company  or  its  agents  and  servants.' 

Illustrations.  —  Workmen,  employed  by  the  company  in 
cutting  the  grass  and  trimming  tho  hedges  bordering  its  line, 
placed  the  trimmings  in  heaps  near  the  track,  where  they  re- 
mained ior  fourteen  days  in  tho  month  of  August.  One  of  the 
heaps  was  ignited  by  a  passing  engine,  and  the  fire  spread  to  a 
house  two  hundred  yards  distant  from  the  track.  Ilcld^  that 
there  was  evidence  to  go  to  the  jury  of  negligence  on  the  part 
of  tiie  company,  although  there  was  no  suggestion  that  the 
engine  was  improperly  constructed  or  driven:  Smith  v.  R.  R. 
Co.,  L.  K.  5  Com.  P.  98;  L.  R.  6  Com.  P.  14.  Phiintiff  left 
cotton  upon  a  platform  near  the  track  of  defendant  railroad 
company,  intending  to  have  it  shipped.  Before  delivery  to  the 
company  the  cotton  was  burned  by  a  fire  which  caught  from  a 
spark  from  the  engine.  The  company  did  not  own  the  plat- 
form, though  it  constantly  used  it,  and  paid  for  other  cotton 
there  burned  at  the  same  time,  the  cotton  paid  for  having  been 
received  by  the  company  for  carriage.  Held,  that  tho  impu- 
tation of  negligence  resulting  from  the  fact  that  a  spark  from 


Rep.  7.34;  Brighthope  R.  R.  Co.  v. 
Rogers,  7o  Va.  443;  Aycock  v.  R.  R. 
Co.,  8'J  N.  0.  321;  Ind.  etc.  R.  R.  Co. 
I',  Overman,  110  Ind.  538;  Clarke  v.  R. 
R.  Co.,  33  Minn.  319;  Louisville  etc. 
R.  K.  Co.  V.  Stevens,  87  Ind.  198. 
Whether  or  not  a  railroad  company 
is  guilty  of  negligence  in  permitting 
conil)Uiitil)le  materials  to  accumulate 
upon  its  lands  is  a  question  for  the 
jury:  Kesee  v.  R.  R.  Co.,  30  Iowa,  78; 
6  Am.  Kop.  (543;  Kellogg  v.  R.  R.  Co., 
26  Wis.  223;  7  Am.  Rop.  69;  Webbw. 
R.  R.  Co.,  49  N.  Y.  420;  10  Am.  Rep. 
389;  Buss  v.  R.  R.  Co.,  28  111.  9;  81 
All).  Dec.  254;  Illinois  etc.  R.  R.  Co. 
t'.  Mills,  42  111.  407;  Ohio  etc.  R.  R. 
Co.  V.  Bhanefelt,  47  111.  497;  95  Am. 


Dec.  504;  Illinois  etc.  R.  R.  v.  Frazier, 
47  111.  505;  Rocktord  etc.  R.  R.  Co.  v. 
Rogers,  62  111.  346;  Texas  etc.  R.  R. 
Co.  V,  Medaris,  64  Tux.  9'2.  In  an  ac- 
tion for  damages  by  lire,  alleged  to 
have  been  caused  by  the  negligent 
management  of  the  di^fendant's  loco- 
motive, evidence  of  negligence  in 
allowing  combustible  mateiiul  to  ac- 
cumulate on  the  right  of  way  is  inad- 
missible: Carters.  R.  K.  Co.,  65  Iowa, 
287. 

*  Baltimore  etc.  R.  R.  Co.  v.  Ship- 
ley, 39  Md.  251;  Ind.  etc.  R.  R.  Co.  v. 
Paramore,  31  Ind.  143. 

••»  WestfaU  V.  R.  R.  Co.,  5  Hun,  75. 

•  Macou  etc.  R.  R.  Co.  v.  McCoanellj 
31  6a.  133;  76  Am.  Dec.  G85. 


813G1 


PERSONAL  PROPERTY  IN  OENERAL, 


^-m 


tho  ciiginf  firofl  the  cotton  wafl  rcbnttorl  by  proof  that  tho  onfino 
was  cmifully  and  fikillfully  managed,  and  was  providi'd  with 
improved  Hpark-arrestere,  and  that  tho  company  wuh  under  no 
obligation  to  provide  a  watclnnan  for  tho  cotton:  Urdirn  v. 
li.  U.  Co.,  V.)  S.  C.  39.  A  railroad  company  Bwitched  burning 
cars  on  a  sid'^-track  to  save  tho  rest  of  tho  train,  and  ncgli- 
gently  allowed  them  to  run  to  tho  ond  of  tho  eide-tnuk,  and  ho 
destroyed  phiintifT's  property,  when,  by  stopping  them  in  tho 
middle  of  tho  siding,  no  property  would  nave  been  injinrd. 
Held,  that  tln!  company  was  liable  for  tho  injury  done:  St,  J.ouk 
etc.  li.  It.  Co.  V.  Ilecht,  38  Ark.  357. 

§  1361.  Evidence  of  Negligence.  —  In  n  iium1>rr  of 
states  tho  destruction  of  property  by  firo  from  tho  dcfojitj. 
ant's  locomotive  raises  a  presumption  of  negligence  which 
casts  the  burden  on  tho  defendant  that  it  was  not  neglj. 
gent,  but  used  safe  appliances  and  competent  servants.' 
But  in  other  states  some  additional  evidence  of  neglii^once 
is  required  <;f  tho  plaintiff.'^    Tho  plaintiff  is  not  bound 

Wmori/nn.  — Spauliliug  r.  R.  R, 
Co.,  30  Wis,  110;  11  Am.  Rnp.  .ViO, 
And  ill  England:  Sco  Aldridi^d  /■.  1!,R, 
Co.,  3  Man.  &  G.  f)!.'*;  Siiiitii  ,•.  11.  R. 
Co.,  L.  K.  0  Com.  P.  14;  (Ulwou  r.  R. 
R.  Co.,  1  Foat.  &  F.  2:i. 

^  Comicrfirut. — BurrougliH  r.  R.  R, 
Co.,  15  Conn.  124;  38  Am.  l\:c.  C4. 

Inditinti.  — Indiana  etc.  11.  U.  Co, 
V.  I'aramore,  31  Ind.  143;  ritt.-lnirgh 
etc.  R.  R.  Co.  V.  Hixim,  llOliid  -JiiS. 

Ni'w  York:  —  Sholdon  r.  U.  ll.  Co,, 
14  N.  Y.  218;  07  Am.  Du.;.  l.V,;  Mc- 
Caig  r-.  R.  R.  Co.,  8  Hun,  .');•',):  Kootl 
V.  R.  R.  Co.,  18  Barb.  SO;  Collins  r. 
R.  R.  Co.,  5  Hun,  503.  But  see  Cm 
v.  R.  R.  Co.,  51)Barl).  044. 

Kannn-i.  —  Kansas  etc,  R.  R.  Co.  i\ 
Butts,  7  Kan.  308;  Atclii?;oii  etc.  R, 
R.  Co.  V.  Stanford,  12  K;ui.  ;5o4;  15 
Am.  Rep.  302. 

PeiiHsylrni)ia.  — R.  R.  Co.  r.  Yeiser, 
8  Pa.  St.  300;  Huyett  v.  R.  K.  Co,, 
23  Pa.  St.  373;  Jennings  r.  R.  U.  Co,, 
93  Pa.  St.  337;  Albert  v.  R.  It.  Co., 
98  Pa.  St.  310.  lint  see  L:ukiiwanna 
etc.  R.  R.  Co.  V.  Doak,  rr2  Pa.  St.  TS; 
91  Am.  Pec.  100;  Peun.  Co.  v.  Watson, 
8H  Pa.  St.  293. 

California.  —UvlM  v.  R.  R.  Co.,  14 
Cal.  387;  73  Am.  Dec.  05G;  Huuryr. 
R.  R.  Co.,  50  Cal.  176. 


'  Illinois.  —  ?,.,  ^s  ,..  R.  R.  Co.,  28  111. 
9;  81  Am.  Duf  J.")4;  Illinois  etc.  R.  R. 
Co.,  V.  .Mills;  4 -J  111.  407;  Toledo  etc. 
R.  R.  Co.  r.  1.  union,  07  111.  08;  sub- 
sequuntly  addj  ;>d  by  statute:  Rev. 
Stats.  1S77,  c.  ill,  sec.  81). 

J/^>wo»/v.—  i'  i.cli?'.  R.R.  Co.,  45 Mo. 
325;  Budtord  r.  R.  R.  Co.,  46  Mo.  456; 
Clemens  f.  R.  1;.  Co.,  53  Mo.  ,300;  14 
Am.  R.-j).  4u0;  Coalo  v.  R.  R.  Co.,  GO 
Mo.  '2-2r,  Co;ii.<  r.  R.  R.  Co.,  61  Mo. 
.38;  \Vi,se  r.  K,  R.  Co.,  85  Mo.  178; 
Crow.s  ,'.  R.  K.  Co.,  19  Mo.  App.  302; 
Mil! or  I'.  R.  K.  Co.,  90  Mo.  389; 
Hiitl  ('.  R.  R.  tn.,  17  Mo.  App.  356. 

^'(■fmiUii.  ■ —  L^urlington  etc.  R.  R. 
Co.,  r.  Westovor,  4  Neb.  268. 

JS'cnulK.  —  Lniigabaugh  v.  R.  R.  Co., 
9  Nuv.  271. 

A'ofth  Carolina.  — Lawton  v,  Giles, 
90N.  C.  374. 

Minni'm/.it.  — Woodson  v.  R.  R.  Co., 
21  Minn.  00;  .J<iliii.son  v.  R.  R.  Co., 
31  Minn.  57;  Mahoney  v.  R.  R.  Co., 
35  Minn.  301. 

Alkliijan. — Jones  v.  R.  R.  Co.,  59 
Mich.  437. 

T'cHw.t.sw.  —  Burke  v.  R.  R.  Co.,  7 
Heisk.  451;  19  Am.  Rep.  618;  Simp- 
son  V.  R.  R.  Co.,  5  Lea,  456. 

Texas.  —  Int.  etc.  R.  R.  Co.  v.  Tim- 
mermanu,  61  Tex.  660. 


2150 


PESTRUCTTON  OP   PKI13CNALTY    BY   FTTtK.       g  1^62 


— R.  R.  Co.  r.  Yoiser, 
•H„yett_r    ll.K.Ca 


to  provo  wliicli  particular  locomotivo  causod  tlio  firo.'  That 
u  firo  stiirtod  after  tho  train  passed  is  uvidouce  lliiii  it  was 
sot  by  llio  train.''  To  prove  nogli;;onco,  tho  phiintitV  may 
t*lio\v  ihiit  tlio  locomotivo  in  question  on  tho  day  of  tho 
injury  omitted  sparks,  while  others  on  tho  same  road  did 
not;'  that  tho  locomotive  at  tho  time  ol'  tho  injury 
tMiiillod  a  quantity  of  sparks  so  larp;o  and  so  brilliant  as 
to  attract  tho  attention  of  tho  witness;'  that  the  loco- 
motives on  the  same  line  frequently  emitted  sparks;'  that 
after  tlio  injury  tho  defendant  changed  tho  stack  on  tho 
locomotive; "  that  tho  locomotive  was  running  faster  than 
tlio  statutory  rate/ 

iLLrsTKATioNS.  —  Tho  firo  started  in  tho  grass  roar  and  to 
tho  koward  of  defendant's  track  a  few  minutes  after  a  train 
li;ul  pnssod;  it  was  sliown  that  there  was  quite  a  stiff  breeze, 
and  tiiat  there  was  no  person,  and  no  other  fire  th.an  tliat  of  tho 
passing  tnigino,  in  the  vicinity  at  tho  time.  JLid,  to  justify  a 
finding  of  tlie  jury,  that  it  was  fired  by  the  engine:  Karscn  v. 
R.  R.  Co.,  29  Minn.  12. 

§  1362.  Evidence  of  Other  and  Distinct  Fires. — In 
actions  of  this  character,  it  is  hold  in  a  number  of  cases 
that  the  plaintiff  may  introduce  evidence  of  other  and 
distinct  fires  set  out  by  tho  defendant's  locomotivo,  either 
before  or  after  tho  happening  of  tho  injury  sued  for,  and 
without  showing  that  they  were  in  tho  charge  of  the  samo 


North  Carolina.  —  EUia  v.  R.  R.  Co., 
2Ire(l.  i:?8. 

Diliwair.  — ■  Jeffcris  v.  R.  R.  Co., 
3  Hou.st.  447. 

/<)-(vf.  —  (fandy  v.  R,  R.  Co.,  30 
Iowa,  4-'();  G  Am.  Rep.  682;  McCum- 
inoiH  i\  11.  R.  Co.,  33  Iowa,  187; 
Ginott  r.  R.  R.  Co.,  30  Iowa,  121. 
But  tlii^  rule  haa  since  been  altered  by 
statute;    IJabcock   v.   R.   R.    Co.,    62 

iow:i,  :m. 

OA/o.  —  Ruflfner  v.  R.  R.  Co.,  34 
Ohio  St.  90. 

'  BuvivT  V.  R.  R.  Co.,  13  Hun,  254; 
Atchisdii  etc.  R.  R.  Co.  v.  Stanford, 
,   12  Kan.  .154;  15  Am.  Rep.  302. 

''  lludmoud  V.  R.  R.  Co.,  76  Mo.  550; 
Kenuey  v.  R.  R.  Co.,  70  Mo.  243; 


Wiley  V.  R.  R.  C'd.,  44  N.  J.  L.  247. 
But  SCO  Mussel  white  i'.  R.  li.  Co.,  4 
Hughes,  100. 

*  Atchison  etc.  R.  R.  Co.  v.  Bales, 
16  Kan.  2r)2;  Atcliisoii  etc.  R.  R.  Co. 
V.  Campbell,  10  Kan.  201. 

*Ruppel  V.  R.  11.  Co.,  l.-^  Daly,  11; 
Ashley  v.  R.  R.  Co.,  13  Daly,  205; 
Brusberg  v,  R.  R.  Co.,  55  Wis. 
100. 

*  P^nn.  R.  R.  Co.  v.  Strauahan,  79 
Pa.  St.  405. 

*  St,  Joseph  etc.  R.  R.  Co.  v. 
Chase,  11  Kan.  47;  Bovier  ?\  R.  R. 
Co.,  13  Hun,  254;  Alpern  v.  Churchill, 
53  Mich.  007. 

'  Martin  v.  R.  R.  Co.,  22  Wis.  437; 
99  Am.  Dec.  189. 


§  13G2     PERSONAL  PROPERTY  IN  GENERAL. 


24C0 


engineer,  or  were  the  same  kind  of  engines  as  tlio  one 
which  'caused  the  damage/  Such  evidence,  it  is  said,  is 
relevant,  both  to  show  the  cause  of  the  injury''  and  negli- 
gence in  the  construction  or  management  of  the  purlicu- 
lar  engine  which  caused  the  damage.^     Evidence  that 


»  Henry  v.  R.  R.  Co.,  56  Cal.  176; 

Gagg  V.  VcttLT,  41  Incl.  228;  13  Am. 
Rep.  322;  Iliuds  v.  Barton,  25  N.  Y. 
544;  Hoyt  v.  Jeflbrs,  30  Mich.  181; 
Homo  Ills.  Co.  r.  11.  R.  Co.,  11  Hun, 
182;  ShcMon  v.  R.  R.  Co.,  14  N.  Y. 
218;  67  Am.  Doc.  155;  Butcher  v.  R. 
R.  Co.,  67  Cal.  518;  Diamond  v.  R.  R. 
Co.,  6  Mont.  580.  Evidence  that  the 
same  loconiotivc  on  the  same  trip  set 
other  firt.s  is  evidence  of  improper 
construction,  repair,  or  use:  Lanning 
V.  R.  R.  Co.,  (IS  Iowa,  502;  Slossen  w. 
R.  R.  Co.,  60  Iowa,  215;  Loring  v.  R.  R. 
Co.,  181  Mass.  400, 

•^  Pig^fot  V.  R.  R.  Co.,  3Com.  B.  230; 
Burke  v.  R.  11.  Co.,  ',  Heisk.  451;  19 
Am.  Rc)).  ()18;  Field  v.  R.  R.  Co.,  32 
N.  Y.  ;^;{0;  Longabaugli  v.  R.  R.  Co., 
9  Nev.  271 ;  Ross  c.  R.  R.  Co.,  6  Allen, 
87,  the  court  saying:  "The  evidence 
to  whicli  the  defendant  objected  was 
clearly  competent.  One  of  the  grounds 
of  tlie  dutenso  was,  that  no  sparks  of 
coal  from  tlie  engine  of  the  defendant 
could  ruacli  the  promises  of  the  plain- 
tiff so  as  to  coinmunicate  fire.  To 
meet  this  piopobitiou  it  was  certainly 
fit  and  apposite  for  the  plaintiff  to 
prove  the  ph.ysical  possibility  that 
lire  couhl  l)o  ao  communicated,  by 
showing  that,  on  a  previous  occasion, 
the  same  ou-iuo,  using  the  same  spe- 
cies of  fml,  I'.ad  emitted  burning 
sparks  v.iiioh  fill  within  the  inclosuro 
of  the  plaiiitilf.  Such  evidence  would 
have  been  open  to  questior.  if  offered 
solely  ill  .supiiort  of  the  plaintiff's  case; 
but  it  was  nniderod  relevant  and  mate- 
rial by  the  ground  taken  in  defense. 
On  the  saiiio  ground,  evi<lence  con- 
cerning th'j  emission  of  sparks  from 
similar  engines  used  on  other  roads 
was  {idniissil)le. "  Hence,  if  the  origin 
of  the  tire  be  admitted,  or  if  the  possi- 
bility of  its  licing  caused  by  the  de- 
fendant be  not  denied,  evidence  of 
subsequent  .'ires  would  be  inadmissi- 
ble, for  this  pur])ose  at  least:  SmitL 
V.  R.  li.  Co.,  10  R.  I.  22. 


»  Smith  V.  R.  R.  Co.,   10  II.  T.  l">- 
Field  f.  R.  R.  Co.,  32 N.  Y.  :m;  Chase 
V.  R.  R.  Co.,  11  Kan.  47;    lluyeit  ,- 
R.  R.  Co.,  23  Pa.  St.  373;  R.  R.  Co.  ;, 
Yeiser,  8  Pa.   St.  366;  Grand  Trunk 
R.   R.   Co.  V.  Richardson,   91   U.  S, 
454;  Cleaveland  v.  R.  R.  Co.,  \-l\i, 
449;  Annapolis  etc.  R,  R.  Co.  r.  (iar- 
ret,  39  Md.  115;    Boyce  v.  R.  11.  Cd 
43  N.  H.  627;  Webb  v.  R.  R.  Co.,  4'J 
N.  Y.  420;  10  Am.  Rep.  ;1S9.     Co,,/,,,, 
Erie  R.    R.   Co.    v.  Decker,    78  I'a, 
St.  293;   Coale  v.  R.  R.  Co.,  00  Mo. 
227;  Lester  v.  R.  R.  Co.,  60  Mo.  (Ul. 
"  What  are  the  facts  of  tliis  cusc? 
Plaintiff's  wood  caught  fire  in  some 
manner  to  him,  at  the  time,  unkiujuu. 
How  did  the  fire  originate?    This  was 
the  first  question  to  he  established  m 
the  line  of  proof.     Positive  lespM.iony 
could  not  be  found.    The  plaiiuilf  was 
compeHed,  from  the  neeessitios  ol  tiio 
case,  to  rely  upon  circumstantial  evi- 
dence.    What  does  he  do?    He  tir.st 
shows,  as  in  the  New  York  case,  t!ie 
improbabilities  of  the  fire  liavingorigi- 
nated  in  any  other  way  except  troai 
coals  dropping  from  the  detemlaiit's 
engines.     He  then  shows  tho  nresLiice 
in  the  wood-yard  of  one  of  tin;  enginos 
of  the  defendant  within  half  an  hour 
prior  to  the  breaking  out  fif  tlie  ti.e; 
then  proves  that  fires  have  heou  set 
in  the  same  wood-yjtrd,  within  a  few- 
weeks  prior  to  this  time,  from  siiark.s 
emitted  from  defendant's  locoaiotivts. 
I   think   such   testimor.y  was  clearly 
admissible,  under  the  particidar  tuts 
of  this  case,  upon  theweiglitof  iva-:nii 

as  well  as  of  authorities l')i<m 

the  question  of  negligence,  it  vas  ad- 
missible as  tending  to  prove  that  if 
the  engines  were,  as  claimed  liy  de- 
fendant, properly  construct"  d,  and 
supplied  with  the  best  air^/ii  .noes  in 
general  use,  they  could  not  liivo  Ineii 
properly  managed,  else  the  fiio  v.diild 
not  have  occurred":  Longibaueh  i'.  K. 
R.  Co.,  9  Nev.  271. 


21C1 


DESTRUCTION   OP   PERSONALTY  BY  FIRE. 


1363 


other  engiues,  under  like  circnmstances,  did  not  commu- 
nicate fire  at  the  place  where  the  fire  in  question  occurred 
is  competent  as  tending  to  prove  negligence  on  the  part 
of  the  defendant  with  regard  to  the  engine  which  caused 
the  iu'e,  either  as  to  its  condition  or  management.* 


§  1363.  Contributory  Negligence.  —  In  England,  it 
would  seem  from  the  decisions  that  the  proprietor  of 
adjoining  property  cannot  be  guilty  of  contributory 
negligence  such  as  will  prevent  a  recovery,  from  the  fact 
that  he  in  some  measure  invited  the  danger  by  leaving 
his  property  either  in  an  exposed  place  or  surrounded  by 
inflammable  matter.^  In  the  leading  English  case  on  this 
subject,  Martin,  B.,  said:  "It  would  require  a  strong  au- 
thority to  convince  me  that  because  a  railroad  runs  along 
my  land  I  am  bound  to  keep  it  in  a  particular  state";  and 
Bnimwcil,  B.,  added:  "The  plaintiff  used  his  land  in  a 
natural  and  proper  way  for  the  purposes  for  which  it  was 
fit.  The  defendants  come  to  it,  he  being  passive,  and  do 
it  a  mischief."^  In  some  cases  in  this  country  the  Eng- 
hsh  rule  is  not  followed,  and  the  defense  of  contributory 
negligence  has  prevailed;*  but  the  decisions  are  difiicult 
to  reconcile.  In  other  states  the  English  rule  is  ap- 
proved.^ 


'  Atchison  etc.  R.  R.  Co.  v.  Stan- 
ford, 12  Kan.  354;  15  Am.  Rep.  3G2; 
Cleavelaiul  I).  R.  R.  Co.,42Vt.  449. 

-  Hamiuaii  v.  R.  R.  Co.,  Wolf  on 
Riiilways,  239  note  e;  Bliss  v.  R.  R. 
Co.,  2  Fost.  &  F.  341. 

'  Vaughaii  v.  R.  R.  Co.,  3 Hurl.  &N. 
:4'2;  5  Hurl.  &  N.  678.  And  see  Sal- 
mon r.  R.  R.  Co.,  38  N.  J.  L.  5;  20 
Aiii.  Rep.  3r)G;  Del.  etc.  R.  R.  Co.  v. 
Salmon,  39  N.  J.  L.  299;  23  Am.  Rep. 
214. 

'  Kesoe  v.  R.  R.  Co.,  30  Iowa,  78; 
C  Aim,  Rep.  643;  Murphy  v.  R.  R. 
Co.,  45  Wis.  222;  30  Am.  Rep.  721; 
Clueaf^o  etc.  R.  R.  Co.  v.  Simouson,  54 
111.  504;  5  Am.  Rep.  155. 

'  Phila.  etc.  R.  R.  Co.  v.  Schultz,  93 
Pa.  St.  341;  Pitts,  etc  R.  R.  Co.  v. 


Hixon,  79Ind.  Ill;  Salmon  v.  R.  R. 
Co.,  38  N.  J.  L.  5;  20  Am.  Rep.  356; 
Railroad  Co.  v,  Salmon,  3i>  N.  J.  L. 
299;  23  Am.  Rup.  214;  Fitch  v. 
R.  R.  Co.,  45  Mo.  322;  Suyder  v. 
R.  R.  Co.,  11  W.  Va.  la;  Ross  v.  R. 
R.  Co.,  6  Allen,  87;  Phila.  etc.  R. 
R,  Co.  V.  HenJrickson,  80  Pa.  St. 
182;  21  Am.  Rep.  97;  Fero  v.  R.  R. 
Co.,  22  N.  Y.  209;  78  Am.  Dec.  178; 
Bevier  v.  R.  R.  Co.,  13  Hun,  254; 
Kellogg  r.  R.  R.  Co.,  2tJ  Wis.  223;  7 
Am.  Rep.  69;  RowcU  v.  R.  R.  Co.,  57 
N.  H.  132;  24  Am.  Rep.  59;  Pitts,  etc. 
R.  R.  Co.  V.  Jones.  80  lad.  4!>6;  44  Am. 
Rep.  334;  Richmond  etc.  R.  R.  Co.  v. 
Medley,  75  Va.  499;  40  Am.  Rep.  734; 
Lindsay  v.  R.  R.  Co.,  29  Minn.  411; 
43  Am.  Bep.  223;  King  v.  Trans.  Co., 


13G3 


PERSONAL   PROPERTY   IN   GENERAL. 


2162 


In  Illinois,  where  the  doctrine  of  comparative  negli. 
genco  prevails,  it  is  held  that  if  the  plaintiff  lias  been 
guilty  of  any  negligence  in  not  keeping  his  field  or  other 
property  free  from  combustible  matter,  he  cannot  re- 
cover, unless  his  negligence  has  been  slight,  and  tliat  of 
the   company  gross  in  comparison  therewith;   and  this 


1  Flip.  1;  Cook  v.  Champlain 
Trans.  Co.,  1  Deiiio,  91,  tho  court  say- 
ing: "Tlic  jiropcrty  dustroyeil  was  in 
an  cxposi'il  and  hazurdoua  position, 
and  thercforu  in  more  tliau  ordinary 
danger  trom  mere  accidental  fires. 
This  risk  the  plaintiffs  assumed,  but 
not  the  risk  of  ant)ther's  negligence. 
They  were  on  their  own  land,  and  froe 
to  use  it  in  any  manner  and  for  any 
purpose  which  was  lawful.  Aa  was 
correctly  observed  by  tho  circuit 
judge,  tho  plaintiffs  had  as  good  a 
right  to  erect  their  mill  on  the  shore 
of  tho  lake  as  the  defendants  had  to 
sail  on  its  bo.soni.  It  must  be  a  star- 
tling principle,  indeed,  that  a  building 
placed  in  an  exposed  position  on  one's 
own  laud  is  beyond  the  protection  of 
the  law,  and  yet  it  comes  to  this  result 
upon  the  argument  urged  in  this  case. 
A  land-owner  builds  immediately  on 
the  line  of  a  railroad,  as  he  has  an  un- 
quectionaldo  right  to  do;  it  maybe  an 
act  of  gn.'at  imprudence,  but  in  no 
sense  is  it  illegal.  Is  ho  remediless  if 
his  house  is  set  on  fire  by  the  sheer 
negligence  of  an  engineer  in  conduct- 
ing his  engine  over  the  railroad  ? 
There  must  be  some  wrongful  act  or 
culpable  negligence  on  tlie  part  of  the 
plaintiff  to  bar  him  on  this  principle, 
and  neither  can  be  affirmed  of  any 
one  for  simply  occupying  a  jjosition  of 
more  or  loss  exposure  on  his  own 
premises.  If  the  principle  urged  on 
the  argument  is  correct,  it  must  be 
applied  in  all  cases  of  the  same  charac- 
ter. The  owner  of  a  lot  builds  upon 
it,  although  in  close  proximity  to  the 
shop  of  a  smith.  Tiio  house  is  more 
exposed  than  it  wouhl  be  at  a  greater 
distance  from  the  shop;  but  is  this  to 
exempt  tlie  smith  from  tho  obligation 
of  care,  and  to  screen  him  from  the 
consequences  of  his  own  negligence? 
I  certainly  think  not.    A  horse  or  car- 


riage on  the  open  ground  of  the  o^vner 
may  bo  more  exposed  to  injury  tliau 
they  would  be  in  a  yard  or  a  i),irn;  hut 
if  damaged  by  the  carclcs.-^ness  of  a 
passer-by,  is  the  owner  njiiiodiloss  bo- 
cause  he  chose  to  leave  them  in  a 
place  of  comparative  exposure  and 
hazard  ?  No  one,  I  think,  tan  doubt 
what  tho  answer  to  this  questioa 
should  be.  I  refer  to  no  authoritiej 
on  this  branch  of  the  case,  for,  in  my 
opinion,  none  arc  requi.siti;.  It  i^ 
but  clearly  to  comprehend  tlic  prin- 
ciple on  which  this  species  of  detunse 
must  rest,  to  see  that  it  Ikis  no  appli- 
cation to  such  a  case  as  this.  Uy  what 
criterion  are  we  to  detcirmiuo  the 
hazards  of  a  particular  powition,  and 
on  that  ground  say  that  tho  owner  bj 
his  own  folly  has  deprivcil  liiniself  of 
all  protection?  In  this  ro^^pect  every- 
thing is  comparative;  but  \\  hero  i.s  the 
true  standard  to  bo  fount  i?  A  iiouse 
forty  feet  from  a  steamboat-luuling  is 
in  more  hazard  than  one  at  tho  distance 
of  forty  rods,  but  it  is  lo.ss  exposed 
than  one  immediately  on  thj  wharf. 
Goods  at  the  window  of  a  shop  are  less 
safe  than  they  would  1)C  on  a  .-^lielf  at 
the  rear  of  the  room;  but  i-;  tiieowaer 
remediless  if  they  are  can.li»!y  soiled 
or  broken  by  some  one  in  tlio  street? 
We  may  run  through  evciv  iniaqinary 
variety  of  position,  some  of  more  and 
some  of  less  exposure  and  ha;;:irtl,  and 
we  must  at  last  come  to  thi'  coiK'lusion 
that  while  a  person  contiiios  hiuiselt 
to  a  lawful  employment  on  Iiis  own 
premises,  his  position,  Imwover  in- 
judicious and  imprudent  it  may  be,  is 
not  therefore  wrongful;  and  that  his 
want  of  duo  care  or  jnii;4mLut  in  its 
selection  can  never  amoint  ti)  negli- 
gence, so  as  thereby  to  di-prive  him 
of  redress  for  wrong  done  lo  liini  by 
others  ":  Erd  v.  R.  K.  Co.,  41  Wis. 
65. 


24G3 


DESTRUCTION   OF   PERSONALTY   BY    1  IllE. 


1363 


question  is  to  be  left  to  the  jury  to  decide.'  It  has  been 
licld  not  contributory  negligence  to  leave  open  the  doors  of 
an  unfinished  building  situated  near  the  track,  although 
upon  the  floor  were  considerable  shavings;  -  nor  to  suffer 
the  roof  of  a  building  to  be  in  such  a  condition  as  to  be 
more  liable  to  take  fire  than  if  it  had  a  safe  and  secure 
roof;^  nor  neglecting  to  keep  down  grass; ^  nor  permit- 
ting grass  to  accumulate  in  the  fence-corners  near  the 
track ;^  nor  allowing  leaves  and  combusliblo  matter  to 
accumulate  on  the  land;"  nor  building  a  lionso  witliin 
thirty  yards  of  the  railroad  track;'  nor  to  stack  hay  on 
a  newly  mown  meadow  thirty  rods  from  the  truck;  **  nor 
failing  to  plow  a  trench  around  a  hedge  an<l  straw-ricks ;** 
nor  failing  to  remove  a  barn  which  stands  in  dangerous 
proximity  to  the  track;*"  nor  suffering  the  roof  of  a  barn 
which  stood  near  the  track,  and  which  was  made  of  shin- 
gles, to  become  and  remain  dry  and  decayed,  and  pecu- 
havly  liable,  on  a  dry  and  windy  day,  to  be  set  on  fire  by 
a  spark  from  a  passing  engine;"  nor  leaving  a  pane  of 
glass  out  of  a  window  in  a  building  near  tlie  track/-  But 
in  other  cases  the  following  have  been  held  to  constitute 
contributory  negligence  on  the  part  of  tlio  plaintiff:  For 


>  Illinois  etc.  R.  R.  Co.  ';.  Mills,  42 
111.  407;  Illinois  etc.  R.  K.  Co.  v. 
Frazier,  47  lU.  505;  Illiuois  etc.  R.  R. 
Co.  i\  Nuim,  51  III.  78;  Chicago  etc. 
R.  R.  Co.  V.  Simoiison,  54  III.  504; 
5  Am.  Rtp.  155;  Ohio  etc.  R.  R.  Co. 
V.  Shanefolt,  47  111.  497;  95  Am.  Dec. 
504;  (heat  Western  R.  R.  Co.  v.  Ha- 
woith,  :?9  111.  347;  Toledo  etc.  R.  R. 
Co.  r.  I'imlar,  53  111.  447;  5  Am.  Rep. 
57;  B;i«3  v.  R.  R.  Co.,  28  111.  9;  81 
Am.  Dec.   254. 

■'  Foro  V.  U.  R.  Co.,  22  N.  Y.  209; 
78  Am.  Dec.  178. 

^Philadelphia  etc.  R.  R.  Co.  v. 
Hendrickson,  80  Pa.  St.  182;  21  Am. 
Rep.  97. 

*  Smith  V.  R.  R.  Co.,  37  Mo.  287; 
Sibilruiid  v.  R.  R.  Co.,  29  Minn.  58. 

"  Fitch  V.  R.  R.  Co.,  45  Mo.  322. 

« Salmon  v.  R.  R.  Co.,  38  N.  J.  L. 
5;  20  Am.  Eep.  356;  Delaware  etc. 


R.  R.  Co.  V.  Salmon,  39  N.  J.  L.  299; 
23  Am.  Rep.  214;  I'atton  v.  R.  R. 
Co.,  87  Mo.  117;  51)  Am.  Rep.  447; 
Palmer  v.  R.  R.  Co.,  70  Mo.  217; 
Indiana  etc.  R.  R.  Co.  v.  Craig,  14  111. 
App.  407. 

'  Burke  v.  R.  R.  Co.,  7  Heisk.  451; 
19  Am.  Rep.  CIS. 

*  St.  Joseph  etc.  R.  R.  Co.  v.  Chase, 
11  Kan.  47. 

•  Burlington  etc.  R.  R.  Co.  v.  West- 
over.  4  Neb.  208;  Kar.seii *».  R.  R.  Co., 
29  Minn.  12.     Soo  Lowis  v.  R.  11.  Co., 

57  Iowa,    127;  Ornu»iid  v.  R.  R.  Co., 

58  Iowa,  742. 

•a  Caswoll  V.  R.  R.  Co.,  42  Wis.  193; 
Jefiferis?).  R.  R.  C<i.,  3>I(.ust.  447. 

"  JeflFeris  v.  R.  R.  Co.,  3  Honst.  447. 

'»  Martin  v.  R.  R.  Co.,  23  Wis.  437; 
99  Am.  Dec.  189;  Louisville  etc.  R. 
R.  Co.  V.  Richardson,  6G  lud.  43;  82 
Am.  Rep.  94. 


§1363 


PERSONAL  PROPERTY  IN  GENERAL. 


2464 


the  owner  of  a  warehouse  adjoining  a  railroad  track  to 
permit  the  windows  of  a  room  to  remain  open  and  iin- 
glazed,  in  which  were  stored  cobs,  husks  of  corn,  grain, 
rags,  and  other  inflammable  material;*  to  allow  shav- 
ings to  accumulate  around  an  unfinished  house  situated 
about  one  hundred  feet  from  the  track;  ^  to  pile  wood 
near  a  side-track;'  or  after  the  discovery  of  the  fire  by 
the  plaintiff,  to  neglect  to  use  reasonably  practicable 
means  to  suppress  it.*  The  fact  that  the  land  to  which 
the  fire  is  communicated  is  wood-land  is  relevant  on  the 
question  of  the  plaintiff's  negligence.  The  greater  dif- 
ficulty of  keeping  such  land  clear  of  inflammable  matter 
will  abate  the  degree  of  diligence  required  of  the  land- 
owner.® Where  a  land-owner  has  claimed  and  obtained 
damages  for  the  occupation  by  the  company  of  a  certain 
strip  of  his  land,  the  fact  that  he  has  run  his  fence  out- 
side that  strip  is  also  relevant."  One  who  authorizes  the 
use  of  a  locoraotive-engine  on  his  premises  for  conve- 
nience in  loading  and  unloadingcannot  maintain  an  action 
to  recover  damages  caused  by  sparks  from  such  engine.^ 
Where  the  defendant's  negligence  caused  a  fire  on  the 
plaintiff's  land,  although  the  plaintiff's  negligence  in- 
creased the  loss,  the  plaintiff  may  still  recover  for  the 
damage  done  before  his  own  negligence  began  to  operate.* 
In  an  action  to  recover  the  value  of  an  elevator  alleged 
to  have  been  burned  by  fire  communicated  to  it  from  the 
building  of  another,  which  was  set  on  fire  by  sparks 
from  a  locomotive  on  defendant's  railroad,  it  was  held 
that  the  contributory  negligence  of^.the  owner  of  the 
building  first  burned  would  not  constitute  a  defense.® 


1  Great  Western  R.  R.  Co.  v.  Ha- 
worth,  30  111.  347. 

2  Coates  V.  11.  R.  Co.,  61  Mo.  38. 

8  Tost  r.  R.  R.  Co.,  108  Pa.  St.  585. 
See  Pittsburg  etc.  R.  R.  Co.  v.  Noel, 
77Ind.  110. 

*  Uoglo  V.  R.  R.  Co.,  28  Hun, 
3G3. 


*  Chicago  etc.  R.  R.  Co.  v.  Siinonson, 
54111.  505;  5  Am.  Rep.  155 

8  R.  R.  Co.  V.  Yeiser,  8  Pa.  St.  366. 

T  Spear  u.  R.  R.  Co.,  49  Mich.  246. 

8  Stebbins  v.  R.  R.  Co.,  54  Vfc.  464; 
41  Am.  Rep.  855. 

»  Small  V.  R.  R.  Co.,  55  Iowa,  582. 
See  Reiper  v.  Nichols,  31  Huii,  491. 


2464 

oad  track  to 
>pen  and  un- 
'  corn,  grain, 
►  allow  shav- 
louse  situated 
to  pile  wood 
[)f  the  fire  by 
.y  practicaLle 
and  to  which 
levant  on  the 
le  greater  dif- 
nnable  matter 
i  of  the  land- 
and  obtained 
y  of  a  certain 
his  fence  out- 
authorizes  the 
363  for   conve- 
fitain  an  action 
such  engine/ 
a  fire  on  the 
egligence   in- 
cover  for  the 
an  to  operate.* 
.evator  alleged 
to  it  from  the 
re   by   sparks 
|d,  it  was  held 
owner  of  the 
|a  defense.* 

]  R.  Co.  V.  Simonson, 
I  Rep.  155 
leiser,  8  Pa.  St.  3b6. 
ICo.,  49Mic!i. '24G. 
'  R.  Co.,  54  Vt.  464; 

Co.,  55  Iowa,  582. 
lolB,  31  Hull,  491. 


2465 


DESTRUCTION    OF   PERSONALTY   BY   FIRE.        §  1364 


Illustrations.  —  The  plaintiff's  barn,  in  which  ho  kept  his 
horses,  stood  within  two  feet  of  the  railroad  fence.     Straw  and 
manure  had  been  thrown  outside,  and  had  accumulated  in  a 
pile,  and  become  dry  and  combustible.     A  spark  from  a  pass- 
ing engine  set  it  on  fire.     Held,  that  this  was  evidence  of  con- 
tributory negligence  to  go  to  a  jury:    Collins  v.  R.  R.  Co.,  5 
Hun,  499.     Fire  was  communicated  by  sparks  from  the  de- 
fondant's  engine  to  a  pile  of  wood  in  its  yard,  and  from  there 
was  carried  to  the  plaintiff's  premises,  adjacent  thereto.     Held^ 
that  the  latter,  in  building  his  house  so  near  the  wood-yard,  had 
assumed  the  increased  risk:  Macon  etc.  R.  R.  Co.  v.  McConnellj 
27  Ga.  481.    The  plaintiflF  had  placed  his  house  some  distance 
from  the  railroad  track,  but  subsequently,  through  the  erection 
by  another  of  a  building  more  contiguous  to  the  track,  it  waa 
placed  in  a  much  more  hazardous  position,  and  was,  a  short  time 
afterwards,  destroyed  by  fire  communicated  in  the  first  instance 
to  the  later  and  nearer  building,  and  from  thence  to  the  plain- 
tiff's property.    Held,  that  the  plaintiff  was  not  guilty  of  con- 
tributory negligence:    Toledo  etc.  R.  R.  Co.  v.  Maxfield,  72  111. 
95.    Plaintiffs  owned  a  .varehouse,  with  a  branch  track  con- 
necting with  defendants'  railroad,  and  employed  the  defendants 
to  draw  cars  upon  that  track  for  their  accommodation.    The 
engine  thus  used  emitted  sparks;  the  plaintiffs  complained  of 
this  to  the  defendants;  the  defendants  promised  to  repair  it, 
but  neglected  to  do  so,  and  the  plaintiffs  continued  to  employ 
the  engine.    The  warehouse  being  set  on  fire  by  sparks  from 
this  engine,  held,  that  the  plaintiffs  were  negligent,  and  had  no 
remedy  therefor  against  defendants:  Marquette  etc.  R.  R.  Co. 
V.  Spear,  44  Mich.  169;   38  Am.  Rep.  242.     Plaintiff  carried 
on  a  varnish  factory  adjoining  defendant's  railroad,  and  in  the 
manufacture  exposed  benzine  out  of  doors  on  his  premises, 
which  was  ignited  by  sparks  from  defendant's  engine,  and 
caused  the  destruction  of  the  factory.    Held,  that  plaintiff  waa 
not  negligent:  Kalbfleishe  v.  R.  R.  Co.,  102  N.  Y.  520;  55  Am. 
Rep.  832.     A  building  belonging  to  a  railroad  took  fire  from 
sparks  from  one  of  their  engines,  and  from  this  building  fire 
was  blown  across  the  street  to  the  storehouse  of  P.,  which,  with 
several  thousand  dollars  in  money  contained  therein,  was  con- 
sumed. In  an  action  by  P.,  held,  1.  That  as  the  loss  of  the  money 
could  have  been  prevented  by  reasonable  efforts  for  its  preser- 
vation, the  company  were  not  responsible  as  to  it;  2.  That  the 
question  whether  the  injury  sustained  was  too  remote  was  for 
the  jury:  Toledo  etc.  R.  R.  Co.  v.  Pindar,  53  111.  447;  5  Am.  Rep. 
57. 

§  1364.    Statutory  Liability. — In  several  states  the 
causing  of  fire  by  railroads  to  adjoining  property  i3 

156 


1364 


PEESONAL  PROPERTY  IN  GENERAL. 


24GG 


made  prima  facie  evidence  of  negligence.^  In  Maino^ 
and  Massachusetts,^  when  injury  is  done  to  oxiy  building 
or  other  property  of  any  person  by  fire  "  communi- 
Gated'"*  by  a  locomotive-engine  of  any  railroad  company, 
the  latter  shall  be  held  responsible  in  damages  to  the 
person  or  corporation  so  injured.  A  railroad  company 
is  also  given  an  insurable  interest  in  the  property  for 
which  it  may  be  held  responsible  in  damages  "  along  its 
route,"  and  may  procure  insurance  upon  it  in  its  own 
behalf.  New  Hampshire  has  a  statute  in  all  respects 
similar  to  these,  except  that  the  word  "  from  "  is  used  in 
the  place  of  "  communicated  by,"  and  the  words  "  on  the 
line  of  such  road  "  in  the  place  of  the  phrase  "  along  its 
route";  consequently,  in  those  states,  the  liability  of  a 
railroad  is  not  dependent  on  its  want  of  care.  These 
statutes  apply  to  corporations  which  have  obtained  their 
charters  before  their  enactment,"  and  a  railroad  company 
which  has  leased  its  line  to  another  company  remains 
responsible  for  any  damage  by  the  latter  caused  by  fire,' 

sec.  89.  And  see  Chicago  etc.  R.  R. 
Co.  V.  McCahill,  56  111.  28;  Pitts- 
burgh  etc.  R.R.Co.  v.  Campbell,  80111. 
445;  Ind.  etc.  R.  R.  Co.  v.  Nicewaiuler, 
21  111.  App.  .S05.  Under  the  South 
Carolina  statute  making  railroads 
liable  for  property  burned  near  the 
right  of  way  when  the  fire  originates 
from  acta  of  an  agent,  questions  of 
negligence  and  proximate  cause  are 
irrelevant:  Thompson  v.  R,  R,  Co.,  24 
S.  C.  306. 

■■*  Stats.  1842,  c.  9,  sec.  5. 

3  Gen.  Stats.  1860,  c.  63,  sec.  101; 
Perley  v.  R.  R.  Co.,  98  Mass.  414;  96 
Am.  Dec.  645;  IngersoU  v.  R.  R.  Co., 
8  Allen,  438. 

*  For  a  construction  of  this  word, 
see  Hart  v.  R.  R.  Co.,  13  Met.  99;  46 
Am.  Dec.  719;  Saflford  v.  R.  R.  Co., 
103  Mass.  583. 

6  Pratt  V.  R.  R.  Co.,  42  Me.  578;  In- 
gersoU  V.  R.  R.  Co.,  8  Allen,  438; 
Lyman  v.  R.  R.  Co.,  4  Cush.  288. 

«  IngersoU  v.  R.  R.  Co.,  8  Allen,  4.'?8, 
A  railroad  company  may  be  held  liable, 
independent  of  statute,  for  injuries 
caused  by  fire  thrown  from  the  loco- 


^Vermont.  — Gen.  Stats.,  c.  28,  sees. 
78,  79;  Grand  Trunk  R.  R.  Co.  v.  Rich- 
ardson, 91  U.  S.  454;  3  Cent.  L.  J.  353; 
Cleaveland  v.  R.  R.  Co.,  42  Vt.  449. 

Maryland.  —  Code,  art.  77,  sec.  2; 
Baltimore  etc.  R.  R.  Co.  v.  Woodruff, 
4  Md.  242;  59  Am.  Dec.  72;  Baltimore 
etc.  R.  R.  Co.  V.  Shipley,  39  Md.  252; 
Baltimore  etc.  R.  R.  Co.  v.  Dorsey,  37 
Md.  19. 

New  Jersey. — Rev.  Stats.,  c.  697, 
Bees.  13,  14;  Delaware  etc.  R.  R.  Co. 
V.  Salmon,  39  N.  J.  L.  299;  23  Am. 
Rep.  214. 

Kansaa.—Gen.  Stats.  1122,  c.  118, 
sec.  2;  Missouri  etc.  R.  R.  Co.  v.  Da- 
vidson, 14  Kan.  349. 

Iowa.  —  Code,  sec.  1289;  Rodemach- 
er  V.  R.  R.  Co.,  41  Iowa,  297;  20  Am. 
Rep.  592.  In  Small  v.  R.  R.  Co.,  6 
Cent.  L.  J.  310,  it  was  held  by  a  divid- 
ed court  that  the  liability  of  railroad 
companies  for  damages  caused  by  fire 
from  their  engines  was  by  this  section 
of  the  code  made  absolute.  But  on  a 
rehearing  this  decision  waa  overruled: 
See  50  Iowa,  338. 

/ifiwots.  — Rev.  Stats,  1877,  p.  775, 


BnesgaaesgBP* 


24G7  DESTRUCTION   OF   PERSONALTY   BY  PIRE.       §  1364 

as  also  does  the  lessee.*  Under  these  statutes  the  defense 
of  contributory  negligence  is  not  available.'  These  stat- 
utes  embrace  both  real  and  personal  property,  provided 
it  be  permanently  existing  and  capable  of  being  insured 
Growing  timber'  and  mechanics'  tools  and  fences*  are 
within  them.  But  not  cedar  posts  that  were  deposited 
temporarily  near  the  track,  and  which  were  intended  to 
be  used  elsewhere.^  Property  is  "  along  the  route "  of 
the  road  when  it  is  so  near  as  to  be  exposed  to  the  danger 
of  fire;  the  actual  distance  is  immaterial."  It  is  not 
necessary  that  the  railroad  company  shall  have  had  ac- 
tual notice  of  the  presence  of  property  along  its  line.' 


motive  of  another  company  permitted 
to  run  over  its  track,  and  whose  want 
of  proper  appliances  ia  known  to  its 
agents:  Delaware  etc.  R.  R.  Co.  v 
Salmon,  39  N.  J.  L.  299;  23  Am,  Rep! 
214;  Pierce  v.  R.  R.  Co.,  61  N.  H.  590: 
Stearns  v.  R.  R,  Co.,  46  Me.  96. 

'  Pierce  v.  R.  R.  Co.,  51  N.  H.  132: 
Davis  V.  R.  R.  Co.,  121  Mass.  134. 

2  Rowell  V.  R.  R.  Co.,  57  N.  H.  132, 


24  Am.  Rep.  59;  Ingersoll  v.  R.  R.  Co., 
o  Allen,  438. 

3  Pratt  V.  R.  R.  Co.,  42  Me.  579 

*  Traak  v.  R.  R.  Co.,  16  Gray,  71. 

I  Chapman  i>.  R.  R.  Co.,  37  Me.  92. 

« Pratt  ^.  R.  R.  Co.,  42  Me.  579; 
Perley  v.  R.  R.  Co.,  98  iMass.  414;  96 
Am.  Dec.  645;  Grand  Trunk  R.  R  Co 
V.  Richardson,  91  U.  S.  454 

'  Ross  V.  R.  R.  Ca,  6  AU^,  87. 


TITLE  XVII. 

AISriMALS. 


■SiaSBBP^^ 


TITLE  XVII. 

ANIMALS. 


CHAPTER  LXXII. 

TITLE  TO  AND  OWNERSHIP  OP  ANIMALS. 


§  1365. 
§  1366. 
§  1367. 
§  1368. 
§  1369. 
§  1370. 
§  1371. 


Wild  and  tame  animals  —  Definitiona. 

Tamo  animals  subjects  of  property. 

Wild  animals  not  property,  unless  tamed  or  captured. 

Pursuit  alone  not  enough. 

Captured  wiKl  animals  regaining  liberty. 

Right  to  increase  of  animals. 

Regulation  of  keeping  of  animals  by  statute. 


§  1365.  Wild  and  Tame  Animals— Definitions.  —  Ani- 
mals, as  used  in  this  title,  mean  '-living  beings,  inferior 
to  man,  having  the  power  of  voluntary  motion." »  Ani. 
mals  are  either  tame  or  wild,  the  latter  being  called,  in 
the  law,  animals  Jerx  naturw. 

§  1366.  Tame  Animals  Subjects  of  Property.— Tame 
Animals  are  the  subjects  of  absolute  property.  Thus  one 
may  have  property  in  a  dog,"  a  turkey ,» a  peacock,*  a  cat,» 


'  Rapalje  and  Lawrence's  Diet.,  tit. 
Animals.    In  Reicho  v.  Smythe,    13 
WalL   162,   it  was  held  that  "ani- 
mals" in  a  revenue  law  did  not  em- 
brace birds  and    fowls.     Horses  are 
"  domestic     animals  "  :     Osborn    v. 
Lenox,  2  Allen,  207.     Parrots  are  not 
per  se  "domestic  animals":  Swan  v. 
Saunders,  14  Cox,  567;  Lawson's  De- 
feuses  to  Crime,  486;  nor  dogs:  State 
r.  Harriman,  75  Me.  562;  46  Am.  Rep. 
423.  Tame  bufifaloes  are  not  "  cattle  " : 
State  V.  Crenshaw,  22  Mo.  457. 
J*  Harrington  v.  Miles,  11  Kan.  480; 
15  Am.  Rep.  355;  Wheatley  w.  Harris, 


4  Sneed,  468;  70  Am.  Dec  259;  Parker 
V.  Mise,  27  Ala.  480;  62  Am.  Dec.  776- 
Dodsonv.  Mock,  4  Dev.  &  B.  146;  32 
Am.  Dec.  677;  Dunlap  v.  Snyder,  17 
Barb.  561;  Woolf  v.  Chalker,  31  Conn. 
}21;  81  Am.  Dec.  174;  State  v.  Mc 
Duffie,  34  N.  H.  523;  69  Am.  Dec. 
516;  Spray  v.  Ammerman,  66  111.  309; 
Uhlien  v.  Cromack,  109  Mass.  273. 

*  State  V.  Turner,  66  N.  C.  61.8 

*  Com.  V.  Beaman,  8  Gray,  497. 

*  WUittingham  v.  Idesou,  8  U.  C. 
L.  J.  14.  In  an  action  against  a  ware- 
houseman to  recover  for  damage  to 
goods  caused  by  rats,  keeping  cata 


§13G7 


ANIMALS. 


2472 


a  mocking-bird/  u  canary-bird,''  and,  of  course,  in  horses 
and  cattle."  It  is  not  necessary  for  the  maintenance  of 
an  action  for  killing  a  dog  that  the  dog  should  bo  shown 
to  be  of  pecuniary  value.* 

Illustrations. — In  trespass  for  killing  a  dog,  the  plaintJfT, 
to  incrouHo  tho  damages,  gave  evidence  of  his  good  qualitioH 
and  value.  Held,  that  defendant  was  entitled  to  show  that  his 
character  was  bad,  and  that  he  was  addicted  to  worrying  Hhoep: 
Dunlap  V.  Snyder,  17  Barb.  561;  Lentz  v.  Stroh,  6  Serg.  &.  R.  34. 

g  1367.  Wild  Animals  not  Property,  unless  Tamed 
or  Captured. — Wild  animals  are  not  the  subjects  of  prop, 
erty,  unless  tamed  or  captured,  and  taken  possession  of  or 
killed,  in  which  cases   they  become  the  property  of  tlio 


ai^out  the  premises  is  cviJeuce  of  dili- 
gence on  hia  i)art:  Cailiflf  v.  Danvers, 
1  Peako,  155.  8o  keeping  a  terrier 
dog:  Taylor  v.  Soorist,  2  Disn.  299. 
Keeping  a  cat  on  board  ship  has  been 
held  to  bo  evidence  of  due  diligence,  so 
as  to  render  a  leak  caused  by  rats  a 
"peril  of  tlie  sea."  See  Aymar  v.  As- 
tor,  G  Cow.  2G7;  Garrigxies  v.  Coxe,  1 
Binn.  592;  2  Am.  Dec.  493.  But  see 
Laveroni  v.  Drury,  IG  Eug.  L.  &  Eq. 
510;  16  Jur.  1024. 

1  Haywood  v.  State,  41  Ark.  479. 

'^  In  Manning  v.  Mitchcrson,  G9  Ga. 
447,  47  Am.  Kep.  7G4,  the  court  say: 
"The  law  of  Georgia  is,  that  to  have 
property  in  animals,  birds,  and  fishes 
which  are  wild  by  nature,  one  must 
have  them  within  his  actual  posses- 
sion, custody,  or  control,  and  tlii-7  he 
may  do  by  taming,  doui-'sticatini;,  or 
confining  them.  The  answ(*v  cf  the 
ex  officio  justice  of  the  poaoe  .n  this 
case,  the  same  being  a  ceiilorarl,  and 
no  traverse  thereof,  must  be  taken  as 
true;  and  it  says  that,  according  to 
the  testimony  of  all  the  witnesses,  the 
bird  in  controversy  was  shown  to  have 
been  tamed.  It  was  also  testified  that  it 
had  been  in  tho  posse.ssion  of  the  plain- 
tiff in  the  warrant  about  two  years; 
that  it  knew  its  name,  and  when 
called  by  its  owner,  would  answer 
the  call;  that  it  had  left  its  cage  on 
one  occasion,  and  after  having  been 
gone  a  day  or  two,  returned;  that  on 


the  twenty-seventh  day  of  December, 
before  the  preceding  Now- Year's  Day, 
it  was  missing  from  its  cage,  ami  on 
tho  latter  day  it  was  received  aiiJ 
taken  possession  of  by  tho  defcmlaut, 
who  had  kept  it  in  confinement  ever 
since.  Under  this  evidence  there  docs 
not  seem  to  be  any  question  of  sufficient 
possession  and  dominion  over  thiij  bird 
to  create  a  property  right  in  tho  plain- 
tiff. To  say  that  if  one  has  a  eaiuiry- 
bird,  mocking-bird,  parrot,  or  any  other 
kind  of  bird  so  kept,  and  it  sliould 
accidentally  escape  from  its  caf,'c  to 
tho  street,  or  to  a  neighboring  house, 
the  first  person  who  caught  it  would 
be  its  owner,  is  wholly  at  variance 
with  our  views  of  right  and  justice. 
To  hold  that  the  traveling  orguni;.t 
with  his  attendant  monkey,  if  it  s^huuld 
slip  its  collar  and  go  at  will  out  of  his 
immediate  possession  and  control,  and 
be  captured  by  another  person,  tliat 
ho  would  be  the  true  owner,  and  the 
organist  lose  all  claim  to  it,  is  iiardly 
to  bo  expected;  or  that  the  wild  ani- 
mals of  a  menagerie,  should  they  es- 
cape from  their  owner's  immediate 
possession,  would  belong  to  the  tirst 

Serson  who  should  subject  them  to  his 
ominion. " 

'  A  registered  cattle-brand  is  j)Wma 
facie  proof  of  ownership:  De  Garca  v. 
Galvan,  55  Tex.  63. 

*  Dodson  V.  Mock,  4  Dev.  &  B.  UG; 
32  Am.  Dec.  677. 


2472 


2473 


TITLE   AND   OWNERSHIP. 


§  1GC7 


SO,  in  horses 
intcnaucc  of 
lid  bo  sliowu 


;,  the  plaintSlf, 
good  qualitit-H 
)  show  that  liivS 
rorrying  Hheep: 
,  Serg.  «&  R.  '<ll 

unless  Tamed 

ijects  of  prop, 
issession  of  or 
•oporty  of  the 

I  day  of  December, 
ig  Ncw-Ycar's  Diiy, 
m  ita  cage,  mul  oii 
was  received  iiiul 
E  by  the  defemlaut, 
in  coutinetneiit  ever 
oviilenoo  there  dous 
|Uoation  of  autficicnt 
liuion  over  this  bird 
y  right  in  the  plain- 
if  ouo  haa  a  cauary- 
,  parrot,  or  any  other 
sept,  and  it  should 
le   from  ita  cage  to 
neighboring  house, 
•ho  caught  it  would 
wholly  at  variance 
right  and   justice, 
traveling  organii.t 
monkey,  if  it  should 
go  at  will  ont  of  his 
lion  and  centred,  aud 
Inother  person,  that 
true  owner,  and  the 
slaim  to  it,  ia  hardly 
■  that  the  wild  am- 
irio,  should  they  es- 
owner's  immediate 
belong  to  the  lirat 
subject  them  to  hia 


possessor.  But  the  right  to  thorn  is  in  tho  owner  of 
the  land  in  which  they  aro  started  and  captured,  and 
not  in  tho  captor.*  A  buffalo  which  has  been  tamed  and 
reared  with  domestic  cattlo  is  tho  subject  of  property.'- 
Tho  title  to  wild  luumals  can  be  gained  only  by  posses- 
sion.^ But  "  actual  bodily  seizure  ia  not  indispensable  to 
acquire  right  to  or  possession  of  wild  beasts,  but,  on  tho 
contrary,  tho  mortal  wounding  of  such  beasts  by  one  not 
abandoning  his  pursuit  may  with  the  utmost  propriety 
bo  (^.eeraed  possession  of  him,  since  thereby  tho  pursuer 
manifests  an  unequivocal  intention  of  appropriating  tho 
animal  to  hia  own  use,  haa  deprived  him  of  his  natural 
liberty,  and  brought  him  within  his  certain  control.  So 
also  encompassing  aud  securing  such  animals  with  nets 
and  toils,  or  otherwise  intercepting  them  in  such  a  manner 
as  to  deprive  them  of  their  natural  liberty  and  render 
escape  impossible,  may  justly  be  deemed  to  give  possession 
of  them  to  those  persons  who  by  thoir  industry  and  labor 
have  used  such  means  of  apprehending  them."^ 

Wild  bees  in  a  tree  belong  to  the  owner  of  the  land,  and 
not  to  the  finder.*  Inclosing  wild  bees  in  hives  gives 
property  in  them.*  Merely  marking  one's  initials  on  a 
tree  on  which  he  has  discovered  a  hive  of  bees  gives  no 
title  to  the  bees.'  "  An  unreclaimed  swarm,  like  all  other 
wild  animals,  belongs  to  tho  first  occupant, — in  other  words, 
to  the  person  who  first  hives  them;  but  if  a  swarm  fly 
from  a  hive  to  another,  his  qualified  property  continues 
so  long  as  he  can  keep   them  in  sight  and  possess  the 


•Goff  V.  Kilts,  15  Wend.  550; 
Blades  1-.  Higga,  12Com.  B.,N.  S.,  501; 
13  Com.  B.,  N.  S.,  848;  11  H.  L.  Cas. 
021.  Game  killed  by  a  trespasser  be- 
longs to  the  owner  of  the  laud: 
Blades  V.  Higgs,  11  H.  L.  Cas.  021, 

■'  Ulery  v.  Jones,  81  111.  403. 

*  Pierson  v.  Post,  3  Caines,  175;  2 
Am.  Dec.  264. 

*  Pierson  v.  Post,  3  Caiaes,  175; 
2  Am.  Dec.  264. 

"  Adams  t'.  Burton,  43  Vt.  36;  Idol 
t'.  Joues,  2   Dev.  162;   Ferguson   v. 


Miller,  1  Cow.  244;  13  Am.  Dec.  519; 
Gillet  V.  Mason,  7  Johns.  10;  Cock  r. 
Wcatherby,  5  Smedes  &  M.  333;  pro- 
vided they  aro  an  unreclaimed  swarm: 
GolT  V.  Kilts,  15  Wend.  551. 

8  Gillet  V.  Mason,  7  Johna.  IG. 
Though  confined  in  the  top  of  a  tree 
by  the  owner  of  the  tree,  they  are  not 
property  until  secured:  Wallia  v. 
Mease,  3  Binn.  546. 

'  Gillet  V.  Mason,  7  Johna.  16;  Fer- 
uaou  V.  Miller,  1  Cow,  244;  13  Am. 


g 


ec.  519. 


11367 


ANIMALS. 


2474 


power  to  pursue  them.  Under  these  circumstances  no  one 
eke  is  entitled  to  take  them." '  A  trespasser  who  places 
in  a  tree  on  another's  land  a  box  for  bees  to  hive  in  can- 
not maintain  trover  against  a  third  person  for  taking 
bees  and  honey  from  the  box.^ 

Doves  are  jerx  naturse,  but  they  may  become  property, 
if  they  are  confined  in  a  pigeon-house,  or  if  they  are  in  a 
nest  and  unable  to  fly.^  Pigeons  which  are  so  tame  that 
they  return  every  night  to  their  houses  are  property/  and 
so  are  wild  geese  of  similar  habits/  and  so  are  partridges 
hatched  by  a  common  hen  and  reared  with  her  brood." 
Carrier-pigeons  belong  to  their  owner,  even  when  absent 
and  flying  across  the  country.' 

Property  is  acquired  in  a  whale  by  killing,  capturing, 
and  marking  it,  and  leaving  it  floating  on  the  ocean.* 
By  usage  recognized  in  the  courts,  a  whale  belongs  to  the 
crew  which  first  harpoons  it;*  or  to  the  person  who  kills 
a  whale  by  a  bomb,  no  matter  who  may  afterwards  find 
it.^"  No  property  is  acquired  in  fish  by  spreading  a  net 
for  them  and  enticing  them  there,  until  they  are  actually 
encompassed."  Oysters  planted  by  a  person  in  a  bed  in  a 
navigable  water  are  the  property  of  him  who  plants  them.'- 


>  Goff  V.  Kilts,  15  Wend.  551. 

2  Rexroth  v.  Coon,  15  R.  I.  35;  2 
Anv  St.  Rep.  8G3. 

» Com.  V.  Chace,  9  Pick.  15;  19  Am. 
Dec.  348. 

*  R.  V.  Brooks,  4  Car.  &  P.  131. 

*Amory  v.  Flyu,  10  Johns.  102; 
6  Am.  Dec.  316. 

»  R.  V.  Shickle,  L.  R.  1   C.   C.  158. 

'  See  23  Alb.  L.  J.  482. 

^  Taber  t\  Jenny,  1  Spragne,  215; 
Birtlett  V.  Budd,  1  Low.  223. 

9  Swift  V.  Gifford,  2  Low.  110. 

'"  Gheu  V.  Rich,  8  Fed.  Rep.  159. 

"  Young  V.  Hichens,  6  Ad.  &  E., 
N.  S.,  606. 

'*  Decker  v.  Fisher,  4  Barb.  592; 
BrinckerhoflF  ?;.  Starkins,  11  Barb.  248; 
Lowndes  v.  Dickerson,  34  Barb.  586; 
Fleet  V,  Hegeman,  14  Wend.  42;  the 
court  saying:  "Oysters  have  not  the 
power  of  locomotion  any  more  than 


inanimatH  things,  and  when  property 
has  once  been  acquired  in  them,  uo 
good  reason  is  perceived  why  it  should 
not  be  governed  by  the  rules  of  law 
applicable  to  inanimate  things.  But 
it  is  contended  they  fall  within  the 
rules  of  law  applicable  to  aramals  de- 
nominated Jer<h  naturcB,  the  same  as 
deer  in  the  forest,  pigeons  in  the  air, 
or  fish  in  public  waters  of  the  ocean. 
A  qualified  property  is  acquired  in 
these  by  reclaiming  and  taming  theii., 
or  by  so  confining  them  within  the 
immediate  power  of  the  owner  as  to 
prevent  their  escape  and  the  use  of 
their  natural  liberty.  Deer  in  a  park, 
hare  or  rabbits  in  a  warren,  or  tish  in 
private  ponds  or  trunks,  are  iustaucej 
of  this  description.  These,  it  is  said, 
are  the  property  of  a  man  no  longer 
than  while  thejr  continue  in  hia  keep- 
ing or  poasession.     Manucapturc  i« 


2474 


2475 


TITLE   AND  OWNERSHIP. 


§1368 


ances  no  one 
r  who  places 
hive  in  can- 
a  for  taking 

me  property, 
they  are  in  a 

80  tame  that 
)roperty,'*  and 
ire  partridges 
1  her  brood." 

when  absent 

Qg,  capturing, 
on  the  ocean.* 
belongs  to  the 
irson  who  kills 
fterwards  find 
preading  a  net 
ey  are  actually 
n  in  a  bed  in  a 
5  plants  them.'- 

and  when  prni^rty 
uired  in  thcni.  no 
ceivod  why  it  should 
by  the  rules  of  law 
limate  things.    But 
chey  fall  within  the 
icable  to  ar-imak  de- 
naturce,  the  same  as 
;,  pigeoiis  in  the  air, 
waters  of  the  oceau. 
)erty  is  acquired  in 
ag  and  taming  thcu., 
ag  them  within  the 
•  of  the  owner  as  to 
cape  and  the  use  of 
rty.    Deer  in  a  park, 
I  a  warren,  or  tish  in 
trunks,  are  iustancen 
n.     These,  it  is  said, 
■  of  a  man  no  longer 
continue  in  his  keep- 
in.     Manucapture  u 


Tliey  are  not  considered  as  abandoned  to  the  public  un- 
less planted  in  a  place  where  oysters  grow  naturally,* 

§  1368.  Pursuit  alone  not  Enough.  —  Pursuit  alone 
gives  no  right  of  property  in  animals  fene  natune?  Thus 
where  A.  started  a  fox  with  his  hounds,  and  while  he  was 
chasing  it,  B,  seeing  that  A  was  in  pursuit  of  it,  stepped 
in  and  killed  and  took  it  himself,  it  was  held  that  A  had 
no  property  in  it  as  against  B.'  So  a  person  who  has 
nearly  got  a  lot  of  fish  in  his  net  has  no  tfdtion  against 
one  who,  by  splashing  the  water,  frightens  them  so  that 
they  escape*  So  marking  one's  initials  on  a  tree  on 
which  he  has  discovered  a  hive  of  bees  gives  him  no 
title  to  the  bees.^  So  where,  after  wounding  a  deer,  the 
pursuer  continued  thd  chase  until  the  evening,  and  then 
abandoned  it  until  the  morning,  bet?<reen  which  time  it 


not  necessary  to  acquire  much  less  to 
continue  possession  of  this  property: 
3  Caines,  178.  If  a  deer  or  any  wild 
animal  reclaimed  hath  a  collar  or  other 
mark  put  upon  him,  and  goes  and  re- 
turns at  pleasure,  it  is  not  lawful  for 
any  one  else  to  take  him;  though  if 
he  be  long  absent  without  returning, 
it  is  otherwise.  In  all  these  cases  of 
wild  animals  reclaimed,  the  property 
is  not  absolute,  but  defeasible  by  the 
animals  resuming  their  ancient  wild- 
uess,  and  going  at  large;  as  if  the  deer 
escape  from  the  park,  or  the  fishes 
from  the  pond  or  trunk,  and  are  found 
at  large  in  their  proper  element,  they 
become  ferm  naturce  again,  and  are  free 
to  the  first  occupant  that  may  seize 
tliem.  But  while  they  continue  the 
owner's  qualified  property,  they  are 
under  the  protection  of  the  law,  as 
much  so  as  if  they  were  absolutely  and 
indefeasibly  his,  and  an  action  will 
lie  for  an  injui-y  committed:  2  Bla. 
Com.  395-397;  3  Co.  Litt.  294,  note  c; 
Case  of  The  Swans,  7  Coke,  86;  8  Vin. 
Abr.,  tit.  Property,  B.  It  is  clear, 
from  the  prin  ^les  and  cases  above 
mentioned,  that  the  right  to  appro- 
priate property  of  the  description  in 
quostiou  does  aot  depend  exclusively 


upon  the  place  where  they  are  found, 
but  upon  the  fact  that  they  are  fercB 
naturce  unreclaimed;  for  though  the 
deer  should  be  found  browsing  ia  his 
own  forest,  and  the  pigeons  flying  in 
the  air,  or  any  of  the  class  reclaimable 
at  large,  if  they  have  been,  in  fact, 
domesticated  and  possess  the  animus 
revertendi,  they  are  not  common  prop- 
erty, and  the  occupant  who  t<akes'them 
gets  no  title;  and  if  he  takes  them 
knowing  their  condition,  he  becomes  a 
trespasser.  This  is  clear  upon  well- 
settled  authority.  The  right  of  the 
plaintiff  to  oysters  is  within  the  rea- 
son of  these  principles.  They  have 
been  reclaimed,  and  are  as  entirely 
within  his  possession  and  control  as 
his  swans  or  other  water-fowl  that 
may  float  habitually  in  the  bay. " 

»  State  V.  Taylor,  27  N.  J.  L.  117; 
72  Am.  Dec.  347. 

*  Pierson  v.  Post,  3  Caines,  175;  2 
Am.  Dec.  204. 

^  Pierson  v.  Post,  3  Caines,  175;  2 
Am.  Dec.  204. 

*  Young  V.  Hichens,  6  Ad.  &  E., 
N.  S.,  606. 

*  Ferguson  v.  Miller,  1  Cow.  244;  13 
Am.  Dec.  59;  Gillet  v.  Mason,  7 
JoUos.  10. 


§§  13G9,  1370 


ANIMALS. 


2476 


was  killed  by  another,  the  former  was  held  to  have  no 
title  to  it.^ 

§  1369.    Captured  Wild  Animal  Regaining  Liberty.  — 

A  wild  animal  reclaimed  or  taken  possession  of  is  the 
property  of  the  possessor  while  such  possession  lasts.  If 
it  regains  its  natural  liberty  as  a  wild  animal,  his  rights 
cease.'^  But  an  animal  does  not  regain  its  natural  liberty 
by  merely  straying  away  from  the  owner.^ 

§  1370.  Right  to  Increase  of  Animals. — The  increase 
of  a  domestic  animal  belongs  to  the  owner  of  the  mother;^ 
or,  if  the  animal  is  hired  at  the  time  to  another,  to  the 
hirer.'^  A  mortgage  of  a  domestic  animal  will  cover  its 
increase.®  But  a  mortgage  of  a  cow  would  not  cover  her 
calf  after  weaning-time.^  Where  a  bequest  of  stock  la 
made  to  a  tenant  for  life,  he  must  keep  up  the  original 
number,®  but  a  tenant  for  life  has  a  right  to  the  increase." 
The  ownership  of  a  sheep  and  of  its  fleece  is  not  separa- 
ble.''' A  sale  of  sheep  carries  the  wool  on  them,  and  ren- 
ders the  seller  by  whom  they  were  shorn  before  delivery 
liable  therefor  to  the  buyer." 

Illustrations.  —  A  father  told  his  son  that  if  he  would  take 
one  of  his  xnares  to  horse  and  pay  for  the  same,  the  foal  slioukl 


^  Buster  ty.  Newkirk,  20  Johns.  75, 

'■*  "  Animals  /ene  iiatune  when  re- 
claimeLl  by  the  act  and  power  of  man 
are  the  subjects  of  a  qualitied  property; 
if  they  return  to  tlieir  natural  liberty 
and  wildiiess  without  the  animus  re- 
rertemli,  it  ceases  ":  Goflf  v.  Kilts,  15 
Wend.  5.")1.  A  domestic  animal  tem- 
porarily astray  is  presumed  to  have  an 
animus  revcrtendi:  People  v.  Kaatz,  3 
Park.  Or.  129. 

3  Ainory  r.  Flyn,  10  Johns.  103;  6 
Am.  Dec.  316. 

*  Stewart  v.  Ball,  33  Mo.  154;  Han- 
8on  V.  Millett,  55  Me.  184;  Concklin 
V.  Havens,  12  Johns.  314;  Orser  v. 
Storms,  9  Cow.  087;  18  Am.  Dec.  543; 
Hazolbaokor  r.  Goodfellow,  64  111.  238; 
Tyson  r.  Simpson,  2  Hayw.  147. 

^  Putnam  v.  Wigley,  8  Johns.  432; 


5  Am.  Dec.  346.  See  Orser  v.  Storms, 
9  Cow.  687;  18  Am.  Doc.  543. 

8  Fonville  v.  Casey,  1  Murph.  389;  4 
Am.  Dec.  559;  Gundy  v.  Bitulor,  C  111. 
App.  500;  Evans  v.  Menki  n,  8  (Jill  & 
J.  39;  McCarty  v.  Blevins,  5  Yerg.  lilo; 
26  Am.  Dec.  262;  Forman  r.  Proctor, 
9  B.  Mon.  124;  Kellogg  v.  Lovely,  46 
Mich.  131;  41  Am.  Rep.  151. 

'  Winters.  Landpherc,  42  Iowa, 471. 

•  Hovey  v.  Glover,  2  Hill  (S.  C) 
621, 

»  Lewis  V.  Davis,  3  Mo.  133;  23  Am. 
Dec.  698;  Poindexter  v.  Blackburn,  1 
Ired.  Eq.  286;  Evans  v.  I<,'lcliart,  6 
Gill  &  J.  171;  Saunders  v.  Haiighton, 
8  Ired.  Eq.  217;  57  Am.  Deo.  5S1. 

'"  Hasbrouck  i\  Bouton,  60  Barb.  413; 
40  How.  Pr.  208, 

'»  Groat  V.  Gile,  51  N.  Y.  431. 


2476 
d  to  have  no 

ag  Liberty.— 

sion  of  is  the 
sion  lasts.  If 
aal,  his  rights 
natural  liberty 

—The  increase 
of  the  mother/ 
another,  to  the 
,1  will  cover  its 
d  not  cover  her 
est  of  stock  is 
up  the  original 
to  the  increase.'^ 
;e  is  not  scpara- 
them,  and  ren- 
before  delivery 

,  if  he  would  take 
^e,  the  foal  should 

See  Oracr  v.  Storms, 
..m.  Dec.  54:i. 
isey,  1  Murph.  389;  4 
tuudy  V.  liiti;lor,  (5  111. 
J  V.  Menki  n,  8  (xill  k 
^.  Blevins,5Yorg.li>5; 
i2;  Forman  v.  Troctor, 
pKellcgg  V.  Lovely,  4G 
Lm.  Kcp.  151. 
rndplierc,42lowii,4/l. 

lover,  2   Hill  (S.  C) 

lis,  3  Mo.  133;  23  Am. 
Uxter  V.  Blackburn,  I 
[  Evans  v.  Isldiart,  b 
launders  v.  Haughton, 
1  57  Am.  Dec.  5S1. 
kBouton,60Barb.413; 

L  51  N.  Y.  431. 


2477 


TITLE  AND  OWNERSHIP. 


§1371 


be  his  property.  The  son  did  so,  and  afterwards  had  the  com- 
plete and  uncontrolled  possession  of  the  foal.  Held.,  that  the 
property  in  the  foal  became  invested  in  the  son:  Linnendoll  v. 
Doe,  14  Johns.  222. 

§  1371.    Regulation  of  Keeping  of  Animals  by  Statute. 
—The  state  has  a  right  to  regulate  the  keeping  of  dogs, 
and  to  authorize  their  summary  destruction  when  the  pre- 
scribed regulations  are  not  complied  with.*    Statutes  allow- 
ing towns  to  impose  a  specific  tax  for  keeping  a  dog,  and 
if  the  tax  be  not  paid,  to  kill  the  dog  as  a  nuisance,  are 
not  unconstitutional.''    The  legislature  has  the  power  to 
encourage  the  rearing  of  sheep,  and,  with  that  object  in 
view,  may  pass  a  law  to  discourage  the  keeping  of  dogs 
by  assessing  a  penalty  upon  the  owner  or  keeper  of  the 
latter.^    So  a  statute  simply  requiring  a  license  fee  from 
the  owners  of  dogs  is  constitutional.*    A  statute  authoriz- 
ing, "for  the  privilege  of  keeping  each  stallion  or  jack,  a 
tax  equal  to  the  amount  for  which  every  such  stud-horse 
or  jack  shall  stand  for  the  season,"  is  unconstitutional.^ 
And  a  statute  of  New  York  authorizing  any  person  to 
seize  and  take  into  his  custody  "any  animal  which  may 
be  trespassing  upon  premises  owned  and  occupied  by 
him,"  to  be  sold  and  disposed  of  as  directed  by  the  act 
for  the  payment  of  the  penalties  imposed  by  it  for  such 
trespass,  was  held  unconstitutional,  on  the  ground  that 
it  is  not  competent  for  the  legislature  to  punish  the  owner 
of  cattle  for  a  casual  and  private  trespass  upon  another's 
premises,  such  power  not  being  necessary  to  carry  out 
any  of  the  objects  committed  to  the  legislative  discretion, 
and  not  being  a  matter  of  public  concern,  so  as  to  bring 
it  within  the  police  power  of  the  legislature.* 


1  Blair  v.  Forehand,  100  Mass.  136; 
1  Am.  Rep.  94. 

» Mowery  «.  Salisbury,  82  N.  0. 175. 

•Mitchell  V.  VViUiams,  27  Ind.  62; 
Carter  v,  Dow,  16  Wia.  298}  Tenney 
t.  Lenz,  10  Wis.  566. 

*  Mitchell  V.  Williams,  27  lad.  62; 
Statov.  Couaall,  27Iad.  120. 


''  Gibson  v.  Pulaski,  2  Ark.  309. 

"  Leavitt  v.  Thompson,  56  Barb.  542. 
And  see  McConnell  v.  Van  Aeruam,  66 
Barb.  534;  Campbell  v.  Evans,  54 
Barb.  666;  Fox  v.  Donckel,  55  Barb. 
431;3d.B0W.Pr.  136. 


§1372 


AN1MA.LS. 


2478 


CHAPTER  LXXm. 


RIGHTS  OF  OWNERS  OR  KEEPERS  OP  ANIMALS. 

§  1372.  Action  for  taking  or  detaining  animal. 

§  1.373.  Action  for  killing  or  injuring  animal. 

§  1374.  Defenses — Killing  ferocious  animoL 

§  1375.  Killing  animal  in  defense  of  person. 

§  1376.  Killing  animal  which  is  a  nuisance. 

§  1377.  Killing  animal  in  defense  of  property. 

§  1378.  Statutory  authority  for  killing  dogs  or  other  animals. 

§  1379.  Killing  or  injuring  trespassing  animals  —  Impounding. 

§  13S0.  Rights  and  liabilities  of  tinders  of  animals. 

§  1372.    Action  for  Taking  or  Detaining  Animal. — The 
owner  of  an  animal  has  a  right  of  action  against  one  who 
wrongfully  takes  it  into  his  possession  or  detains  it  against 
his  will.     Thus  a  person  who  finds  a  horse  at  large  and 
uses  him  is  liable  to  the  owner,  if  he  is  injured  by  such 
"user.^    A  drover  who,  in  driving  a  herd  on  the  highway 
to  market,  also  drives  along  with  it  the  cattle  of  another 
person,  which  are  running  at  large  in  the  highway,  and 
which  join  the  herd,  is  liable  in  trespass  if  he  knows  they 
do  not  belong  to  him,  or  if,  having  had  his  attention  called 
to  them,  he  does  not  use  proper  diligence  in  ascertaining 
whether  he  owns  them.     He  is  not  liable  if  he  does  not 
notice  them  in  the  herd.''    A  person  has  no  right  to  de- 
tain  a  domestic  animal  belonging  to  another,  which  has 
strayed  on  his  land  and  done  damage,  until  the  owner  has 
paid  the  damage.'    An  officer  has  no   right  to  detain 
horses  running  at  large  contrary  to  an  ordinance,  where 
they  have  escaped  from  their  owner  against  his  will,  and 
he  immediately  goes  in  pursuit  of  them.*    The  owner  of 
a  shade-tree,  finding  another's  horso  hitched  to  it,  is  not 
liable  in  trespass  for  removing  the  horse  to  a  safe  place.* 


^  Murgoo  V.  Cogswell,  1  E.  D.  Smith, 
359. 
'  Young  V.  Vaughan,  1  Houat.  331. 


'  Ladue  v.  Branch,  42  Vt.  574. 
♦  Kinder  v.  Gillespie.  63  111.  88. 
^  Gilman  v.  Emery,  54  Me.  460. 


2478 


2479 


RIGHTS   OF   OWNERS   OR   KEEPERS. 


lO!  O 


JIMALS. 


other  animals. 
—  Impounding. 

[lals. 

Animal.— The 

gainst  one  who 
itains  it  against 
se  at  large  and 
njured  by  such 
)n  the  highway 
ittle  of  another 
highway,  and 
he  knows  they 
attention  called 
in  ascertaining 
if  he  does  not 
no  right  to  de- 
ther,  which  has 
il  the  owner  hos 
right  to  detain 
rdinance,  where 
nst  his  will,  and 
The  owner  of 
hed  to  it,  is  not 
to  a  safe  place.' 

anch,42Vt  574 
lllespie.  63  111.  88. 
mery,  54  Me.  460. 


§  1373.  Action  for  Killing  or  Injuring  Animal.  — Tho 
owner  of  an  animal  has  a  right  of  action  against  one  who 
wrongfully  kills  or  injures  it.^  Such  actions  have  been 
sustained  by  the  owners  of  cats,"  cattle,^  dogs,^  lions, ^ 
horses  and  mules,*  sheep,''  and  swine.®  Actions  have 
been  sustained  for  injuring  a  horse  by  chasing  him  from 
a  field  with  a  fierce  dog,"  for  injuring  a  horse  by  driving  a 
wagon  against  him  in  the  highway,*'*  and  for  killing  other 

1  In  Blair  V.  Forehand,  100  Mass.  140, 
97  Am.  Dec.  83,  it  is  said:  "  In  regard 
to  the  ownership  of  live  animals,  tlio 
law  has  long  made  a  distinction  be- 
tween dogs  and  cats  and  other  domes- 
tic quadrupeds,  growing  out  of  the  na- 
ture of  the  creatures  and  the  purposes 
for  which  they  are  kept.     Beasts  which 
have  been  thoroughly  tamed,  and  are 
..sed  for  burden  or  husbandry,  or  for 
food,  such  as  horses,  cattle,  and  sheep, 
are  as  truly  property  of  intrinsic  value, 
and  entitled  to  the  same  protection,  as 
any  kind  of  goods.     But  dogs  and  cats, 
even  ia  a  state  of  domestication,  never 
wholly  lose  their  wild  natures  and  de- 
structive instincts,  and  are  kept  eitlier 
for  uses  which  depend  on  retaining 
anil  calling  into    action    those  very 
natures  and  instincts,  or  else  for  the 
mere  whim  or  pleasure  of  the  owner; 
and  therefore,  although  a  man  might 
have  such  a  right  of  property  in  a  dog 
as  to  maintain  trespass  or  trover  for 
unlawfully  taking  or  destroying  it,  yet 
he  was  held,  in  the  phrase  of  the  books, 
to  have   'no  absolute    and  valuable 
property '  therein  which  could  be  the 
subject  of  a  prosecution  for  larceny 
at  common  law,  or  even,  according  to 
some  authorities,  of  an  action  of  det- 
inue or  replevin  or  a  distress  for  rent, 
or  which  would  make  him  responsible 
for  the  trespasses  of  his  dog   on  the 
lands  of  other  persons,  as  he  would  bo 
for  the  trespasses  of  his  cattle:  Vin. 
Ahr.,  tit.  Trespass,  Z;  Replevin,  A; 
2  Bia.  Com.  193;  3  Bla.  Com.  7;  4  Bla. 
Com.  234,  235;  Mitten  v.    Faudrye, 
Popli.  IGl;  sub  nom.,Mi\\env.  Fawen, 
Benl.  N.  171;  Mason  v.  Keeling,  1  Ld. 
Rayui.  608;  12  Mod.  336;  Read  v.  Ed- 
wards, 17  Com.  B.,  N.  S.,  245;  Re- 
gina  V.  Robinson,  8  Cox's  C.  C.  115. 
And  dogs  have  always  been  held  by 
the  American  courta  to  H«  entitled  io 


less  legal  regard  and  protection  than 
more  harmless  and  useful  domestic 
animals:  Putnam  v.  Payne,  13  Johns. 
312;  Brown  v.  Carpenter,  26  Vt.  038; 
62  Am.  Dec.  603;  Woolf  v.  Chalker,  31 
Conn.  121;  81  Am.  Dec.  175." 

'^  Whittington  v.  Ideson,  8  U.  C. 
L.  J.  14. 

'  Van  Leuven  v.  Lyke,  1  N.  Y.  515; 
49  Am.  Dec.  346. 

*  Uhleinw.  Cromack,  109  Mass.  273; 
Brent  v.  Kimball,  60  111.  211;  14  Am. 
Rep.  35;  Wheatley  r.  Harris,  4  Siieed, 
468;  70  Am.  Dec.  258;  Perry  i:  Phipps, 
lOIred.  259;  51  Am.  Rep.  387;  Dodson 
V.  Mock,  4  Dev.  &  B.  146;  32  Am,  Dec. 
677;  Parker  v.  Mise,  27  Ala.  480;  62 
Am.  Dec.  776.  But  it  is  held  in 
Georgia  in  a  recent  case  that  no  action 
lies  for  negligently  killing  a  dog :  Jemi- 
son  V.  R.  R.  Co.,  75  Ga.  444;  58  Am. 
Rep.  476.  The  dog  in  this  case  was 
killed  by  a  locomotive  while  on  tho 
track.  "That  the  owner,  at  the  com- 
mon law  and  under  our  code, "  said  tho 
court,  "may  maintain  trespass  vi  tt 
armii  for  wantonly  and  maliciously 
killing  his  dog,  is  not  questioned,  but 
it  is  equally  clear  by  that  law  that  he 
could  not  maintain  case  for  its  unin- 
tentional though  negligent  destruc- 
tion": And  see  Wilson  r.  R.  R.  Co., 
10  Rich.  52. 

»  Clark  V.  Keliher,  107  Mass.  406; 
Johnson  v.  Patterson,  14  Conn.  1;  35 
Am.  Dec.  96;  Matthews  v.  Fiestil,  2 
E.  D.  Smith,  90. 

6  Bishop  V.  Ely,  9  Johns.  294;  Dolph 
V.  Ferris,  7  Watts  &  S.  367;  42  Am. 
Dec.  246. 

'  Besant  v.  R.  R.  Co.,  8  Com.  B., 
N.  S.,  368. 

^  Morse  v.  Nixon,  6  Jones,  293. 

»  Amick  V.  O'Hara,  6  Blackf.  268, 

10  Bishop  V.  Ely,  9  Johns.  294. 


§1374 


ANIMALS. 


2480 


animals  in  various  ways.^  The  ownei  of  a  mare  injured 
by  service  per  rectum  by  defendant's  stallion  need  not 
l^rove  negligence."  One  who  negligently  constructs  or 
maintains  a  barbed-wire  fence  in  a  dangerous  condition 
between  his  land  and  the  adjacent  highway  is  liable  for 
an  injury  thereby  occasioned  to  domestic  animals  law- 
fully running  at  large,  and  which  are  attracted  within 
the  inclosure  by  the  presence  of  other  animals  and  grow- 
ing pasture.^  The  owner  of  a  horse  entered  for  a  raco 
takes  all  the  risks  incident  to  the  race;  and  if  a  horse  is 
intentionally  fouled,  or  purposely  runs  against  or  inter- 
{q-"  y  "Hh  a  competing  horse  in  the  race  by  the  rider,  the 
en  It  oy  ;  of  such  rider  is  liable  for  damages  for  any  in- 
jury which  results.  If  a  jockey  attempts  to  take  the  track 
a'  ad  of  another  horse  before  his  horse  is  a  clear  length 
aheaa  of  the  other  horse,  or  if  he  crowds  the  other  horse 
so  as  to  impede  him,  or  compels  his  jockey  to  hold  him 
in  or  change  his  course  to  avoid  a  collision,  it  would  be 
foul  riding;  and  the  fact  that  the  rider  who  attempts  a 
foul  runs  as  great  risk  to  himself  and  his  horse  as  he  im- 
poses on  his  competitor  will  not  justify  him  in  attempt- 
ing a  foul.* 


§  1374.  Defenses  —  Killing  Ferocious  Animal.  —  A  per- 
son may  lawfully  kill  a  ferocious  and  dangerous  dog 
running  at  large  without  a  muzzle,'  as  a  dog  that  has  been 
bitten  by  a  mad  dog;®  and  it  is  not  necessary  to  show  that 


'  See  cases  supra. 
2  Peer  v.  Ryan,  54  Mich.  224. 
^Sisk  V.   Crump,  112  Ind.  504;  2 
Am.  St.  Rep.  213. 

*  McKay  v.  Irvine,  11  Bias.  168. 

*  Putnam  v.  Payne,  13  Johns.  312; 
Brown  V.  Carpenter,  26  Vt.  638;  62 
Am.  Dec.  605;  Woolf  v.  Chalker,  31 
Conn.  1.30;  81  Am.  Dec.  175;  Keck  v. 
Halstead,  Lutw.  1494;  King  v.  Kline, 
6  Pa.  St.  318;  Perry  v.  Phipps,  10 
Ired.  259;  51  Am.  Dec.  387;  Dunlap 
V.  Snyder,  17  Barb.  561;  Dodson  v. 
Mock,  4  Dev.  &  B.  146;  32  Am.  Dec. 


677;  Parrott  v.  Hartsfield,  4  Dev.  &  B. 
110;  32  Am.  Dec.  673;  Hinckley  v. 
Emerson,  4  Cow.  351;  15  Am.  Dec. 
383. 

*  Putnam  v.  Pasme,  13  Johns.  312. 
See  Wallace  v.  Douglas,  10  Ired.  70, 
as  to  statutory  obligation  of  owner  of 
mad  dog  to  kill  it.  In  Brown  v.  Car- 
penter, 26  Vt.  638,  62  Am.  Dec.  605, 
the  court,  speaking  of  a  dog  which  it 
was  provvd  had  bitten  people,  thouj;h 
at  tlie  time  it  was  killed  it  was  doing 
no  harm,  said:  "To  say  that  such  a 
dog  ia  not  the  common  annoyance  and 


2480 


2481 


RIGHTS  OP  OWNERS   OR  KEEPERS, 


1375 


are  injured 
n  need  not 
nstructs  or 
8  condition 
is  liable  for 
nimals  law- 
cted  within 
is  and  grow- 
i  for  a  racG 
if  a  horse  is 
ist  or  inter- 
he  rider,  the 
}  for  any  in- 
ike  the  track 
clear  length 
!  other  horse 
to  hold  him 
,  it  would  be 
0  attempts  a 
rse  as  he  i ra- 
in attempt- 

nal.  —  A  per- 

mgerous  dog 

,hat  has  been 

to  show  that 

afield,  4  Dev.&B. 
673;  Hinckley  v. 
51;   15  Am.  Dec. 

^,  13  Johns.  312. 
glas,  10  Ired.  79, 
ation  of  owner  of 
In  Brown  v.  Car- 
62  Am.  Dec.  C05, 
of  a  dog  which  it 
en  people,  though 
illed  it  was  doing 
J  say  that  such  a 
on  annoyance  and 


the  owner  had  knowledge  of  his  ferocious  disposition.' 
It  is  lawful  to  kill  a  dog  by  which  one  has  been  bitten, 
whether  mad  or  not.'^  It  is  no  defense  that  the  dog  was 
a  dangerous  dog  and  had  bitten  persons,  if  it  was  kept 
chained  by  the  plaintiff  on  his  premises,  or  had  not  at- 
tacked the  defendant.'  A  statute  authorizing  the  killing 
of  unlicensed  dogs  "wherever  found"  does  not  protect 
a  person  who  enters  another's  house  without  his  consent 
and  kills  such  a  dog.* 

§  1375.    Killing  Animal  in  Defense  of  Person. — One 

may  lawfully  kill  an  animal  which  attacks  him.''  And 
the  right  of  self-defense  against  an  attack  by  an  animal  is 
not  restricted,  as  it  is  in  the  case  of  an  attack  by  an  indi- 
vidual; the  danger  need  not  be  imminent,  and  the  party 
attacked  need  not  be  in  particular  danger.* 


terror  of  a  neighborhood  is  to  deny 
what  every  man  knows  to  be  emphati- 
cally true.  Some  animals  are  common 
nuisances  if  sufiFered  to  go  at  large, 
from  their  known  and  uniform  in- 
stincts and  propensities,  such  as  liona 
and  bears,  and  probably  wolves  and 
wild-cats:  Bull.  N.  P.  70;  King  v. 
Huj^'gins,  2  Ld.  Raym.  1583;  and 
domestic  animals,  from  their  ferocious 
and  dangerous  habits  becoming  known 
to  their  keepers,  thus  become  common 
nuisances  if  not  restrained.  But  such 
an  animal  is  quite  as  obviously  within 
the  general  definition  of  a  common 
nuisance  as  a  wolf  or  a  wild-cat  or  a 
baar,  and  if  allowed  to  go  at  large,  as 
really  deserves  to  be  destroyed.  If 
any  animal  should  be  regarded  as  the 
common  terror  of  all  peaceable  and 
quiet-loving  citizens,  it  is  such  a  dog; 
and  the  owner  who  persists  in  keeping 
such  an  animal  without  efifectually  and 
physically  restraihing  him  so  that  he 
can  do  no  one  harm,  ought  not  to 
conn»lain  of  his  destruction.  He 
ouglit  to  be  grateful  to  escape  so;  for 
he  undoubtedly  is  liable  to,  and  justly 
deserves,  exemplary  punishment,  un- 
der the  criminal  laws  of  the  state;  and, 
it  one  injured,  or  liable  to  injury, 
chooses  to  right  himself  by  abating 
156 


the  nuisance  only,  he  deserves,  to  lie- 
regarded  as  a  public  benefactor." 

'  "I  doubt  if  it  bo  necessiiry  in  this 
and  like  cases  to  prove  a  scienter  upon 
the  owner.  If  the  dog  be  in  fact  fe- 
rocious, at  large,  and  a  terror  to  the 
neighborhood,  the  public  should  be 
justified  in  dispatching  him  at  once  ": 
Maxwell  v.  Palmerton,  21  Wend.  407. 
Proof  that  the  dog  was  ferocious  is 
not  restricted  to  a  year:  Boecher  v, 
Lutz,  13  Daly,  28. 

'  Bowers  v.  Fitzrandolph,  Add.  215. 

»  Uhlein  v.  Cromack,  109  Mass.  273. 

*  Kerr  v.  Seaver,  11  Allen,  151. 
Similar  ruling  at  common  law  in  Perry 
V.  Phipps,  10  Ircd.  259;  51  Am.  Dec. 
387. 

'  As  a  dog:  Credit  v.  Brown,  10 
Johns.  365;  Hinckley  v.  Emerson,  4 
Cow.  352;  15  Am.  Dec.  383;  Reynolds 
V.  Phillips,  13  111.  App.  557;  Dunning 
V.  Bird,  24  lU.  App.  270;  or  a  bull: 
Ruasell  v.  Barrow,  7  Port.  106. 

«  Aldrich  v.  Wright,  53  N.  H.  398; 
16  Am.  Rep.  339;  Vere  v.  Candor,  11 
East,  568;  Perry  v.  Phipps,  10  Ired. 
259;  51  Am.  Dec.  387.  In  Perry  n 
Phipps,  10  Ired.  259,  51  Am.  Dec.  387, 
the  court  say:  "A  person  is  not  bound 
to  stand  quietly  and  be  bitten  by  a 
dog,  ugic  to  give  him  what  might  bj» 


§§  137C,  1377 


ANIMALS. 


2485 


§  1376.  Killing  Animal  Which  is  a  Nuisance. —The  in- 
habitiints  of  a  dwelling-house  have  a  right  to  kill  a  dog 
which,  by  howling  and  barking  by  day  and  night,  disturbs 
their  peace  and  repose.' 

§  1377.    Killing  Animal  in  Defense  of  Property.  — If 

necessiiT-y  to  protect  animals  from  being  killed,  their 
owner  may  kill  the  attacking  animal.'^  Thus  a  dog  nitiy 
be  killed  which  is  chasing  conies  in  a  warren  or  deer  in  a 
park,^  or  which  is  worrying  or  chasing  fowl,'  or  sheep;'' 
or  an  unmuzzled  dog  which  attacks  a  muzzled  one.^  Not- 
withstanding a  statute  prohibiting  the  killing  of  mink 


called  a  fair  fight  among  men.  But  if 
a  fierce  ami  vicious  dog  be  allowed  to 
go  at  large,  and  he  runs  at  a  person 
as  he  lawfully  goes  to  a  house  or  is 
passing  along  the  road,  apparently  to 
set  on  a  person,  or,  for  example,  on 
the  horso  he  is  riding,  it  seems  but 
reasonable  the  person  should  protect 
himself  from  the  injury  of  a  bUe  to 
himself  or  his  horse  by  killing  the  dog; 
for  although  a  man  has  a  right  to  keep 
a  dog  for  the  protection  or  his  house 
and  yard,  yet  he  ought  to  keep  him 
eecured,  and  not  let  liim  loose  and  un« 
controlled  at  such  hours  and  in  such 
places  as  will  endanger  peaceable  and 
honest  people  engaged  in  their  lawful 
business.  If,  thefSfore,  this  dog  were 
one  of  the  kind  supposed,  and  the  de- 
fendant had  shot  him  as  he  came  at 
him,  and  when  he  had  reasonable 
grounds  to  think  that  the  dog  could 
not  be  restrained  by  the  owner  or  his 
family,  and  would  bite  him,  we  should 
hold  tliat  he  did  no  more  than  he  had 
a  right  to  do.  But  when  the  plaintifif 's 
family  were  at  home,  and,  by  their 
immediate  interference  and  com- 
mands and  punishment,  governed  and 
drove  away  the  dog,  so  aa  not  only 
to  prevent  him  from  oiting  the  defend- 
ant at  that  time,  but  also  to  save 
the  defendant  from  all  danger  then 
by  driving  the  dog  away,  the  killing 
of  the  dog  after  that,  and  against  the 
urgent  entreaties  of  the  family,  could 
have  been  on 'yon  the  pretense  and 
not  on  the  realty  of  protecting  the  de- 
fendant fiom  an  attq^  at  that  time  " 


»  Brill  V.  Flagler,  23  Wcud.  .355; 
Woolf  V.  Chalker,  31  Conn.  1'_>I;  81 
Am.  Dec.  175.  In  Dodson  v.  Mock,  4 
Dev.  &  B.  146,  32  Atn.  Dec.  G77,  the 
court  said:  "It  is  not  denied  that  a 
dog  may  be  of  such  a  ferocious  dispo- 
sition or  predatory  habits  as  to  render 
him  a  nuisance  to  the  community,  and 
such  a  dog,  if  permitted  to  go  at  large, 
may  be  destroyed  by  any  person.  iJut 
it  would  be  monstrous  to  roriuire  ex- 
emption from  all  fault  as  a  eou<lition  of 
existence.  That  the  plaintitl  ".s  dog  on 
one  occasion  stole  an  egg,  and  after- 
wards snapped  at  the  heel  of  the  man 
who  had  hotly  pursued  him  Jlitiimule 
delicto;  that  on  another  occa.sioii  he 
barked  at  the  doctor's  horse;  and  tiiat 
he  was  shrewdly  susijected  in  early 
life  to  have  worried  a  sheep,  —  make 
up  a  catalogue  of  offenses  not  very 
numerous,  nor  of  a  very  heiuous  char- 
acter. If  such  deflections  as  these 
from  strict  propriety  bo  sulTieieut  to 
give  a  dog  a  bad  name  and  kill  him, 
the  entire  race  of  these  faithful  and 
useful  animals  might  be  rightfully  ex- 
tirpated. " 

*  Hinckley  v.  Emerson,  4  Cow.  361; 
15  Am.  Dec.  383. 

'  Maxwell  v.  Palmerton,  21  Wend. 
407;  Wadhurst  v.  Damme,  C'ro.  Jae. 
4.5;  Barrington  v.  Turner,  3  Lev. 
28. 

♦  Janson  v.  Brown,  1  Camp.  41; 
Leonard  v.  Wilkins,  9  Johns.  234. 

*  Brown  v.  Iloburger,  52  Barb.  15. 

•  Boecher  v.  Lutz,  13  Daly,  28. 


2483 


RIGHTS   OP   0\V'NEIIS   OR  KEEPERS. 


§1377 


Emerson,  4  Cow.  351; 


Brown,    1  CamP-  41; 
kins,  9  Johns.  234. 
oburger,  52  Bai4).  15. 


during  certain  mouths,  a  person  may  justify  such  a  kill- 
ing by  showing  that  the  mink  were  killed  while  they 
were  chasing  his  geese  on  his  land.*  Where  an  ass  at- 
tacks a  cow,  and  the  owner  of  the  latter  believes  it  to  be 
necessary  to  save  it,  he  may  kill  the  ass.^  It  is  said  in  an 
Illinois  case  that  the  natural  right  of  a  man  to  defend  his 
domestic  animals  upon  his  own  premises  from  the  attacks 
of  dogs  ia  not  taken  away  by  the  decisions  of  the  com- 
mon-law courts,  nor  by  the  Illinois  statutes.  His  right  of 
action  against  the  owner  of  the  dogs  for  the  injury  done 
by  them  is  merely  cumulative  to  his  prior  right  of 
making  a  reasonable  defense  to  protect  his  property 
therefrom.  The  relative  value  of  the  assailing  and  as- 
sailed animals  must  be  considered.  This  was  held  in  an 
action  for  the  killing  of  two  Irish  thoroughbred  setter 
pups  that  had  attacked  a  thoroughbred  hen  of  the  Plym- 
outh Rock  breed.^  But  it  is  not  justifiable  to  kill  a  dog 
after  he  has  stopped  chasing  sheep,*  unless  there  is  reason 
to  apprehend  his  returning;^  or  after  he  has  come  from 
chasing  deer  in  a  park,  and  is  with  his  master  in  the 
highway.^  One  cannot  justify  his  killing  his  neighbor's 
dog  by  showing  merely  that  ho  had  reasonable  cause  to 
believe  the  dog  to  be  on  his  premises  for  the  purpose  of 
killing  his  hens;^  nor  is  it  justifiable  to  kill  a  dog  which 
is  chasing  trespassing  stock  off  his  master's  premises.* 
But  an  animal  may  lawfully  be  killed  which  is  destroying 
other  property.®  Where  a  person  hung  fish  up  to  dry  on 
the  wall  of  his  house,  and  a  dog  entered  the  premises,  and 


>  AlJrich  V.  Wright,  53  N.  H.  398; 
16  Am.  Rep.  340. 
'^  Williams  v.  Dixon,  65  N.  0.  416. 
'  Amierson  v.  Smith,  7  111.  App.  354. 

♦  Wulls  V.  Head,  4  Car.  &  P.  5G8. 

*  PaiTott  V.  Hartsfield,  4  Dev.  & 
B.  110;  32  Am.  Dec.  673.  The  owner 
of  domestic  animals  is  justified  in  kill- 
ing a  dog  which  is  harassing,  maim- 
iuff,  or  worrying  the  animals;  and  the 
killing  is  juatiliable,  even  if  at  the 
time  the  dog  ia  not  committing  the  act, 


provided  his  conduct  is  such  as  to  ex- 
cite a  reasonable  apprehension  that  he 
is  about  to  do  so:  Marshall  v.  Black- 
shire,  44  Iowa,  475. 

"  Protheroe  v.  Mathews,  5  Car.  & 
P.  581. 

^  Livermore  v.  Batchelder,  141  Mass. 
179. 

*  Spray  v.  Ammerman,  GO  111.  309. 

•  King  V.  Kline,  6  Pa.  Sr.  318;  Cane- 
fox  V.  Crenshaw,  24  Mo.  199;  69  Am, 
Dec.  427. 


1 1378 


ANIMAL3. 


2484 


was  discovered  in  the  act  of  eating  the  fisli,  and  driven 
away,  and  on  his  coming  again  was  caught  in  a  trap  „nd 
sJiot,  this  was  held  justifiable.^  So  a  person  may  shoot 
pigeons  which  are  injuring  his  crops,^  or  a  hog  which  is 
pursuing  his  chickens.' 

§  1378.  Statute  Authority  for  Killing  Dogs  and  Other 
Animals.  —  By  statute  the  right  to  kill  dogs  and  other  ani- 
mals  has  been  enlarged.*  Thus  dogs  running  at  large, 
not  licensed  or  wearing  collars  or  muzzles  in  certain  aea- 
sons,  have  been  declared  outlaws,  and  liable  to  be  killed  by 
any  one.  The  legislature,  by  virtue  of  its  police  power, 
may  authorize  a  city  to  ordain  that  dangerous  animals  be 
summarily  destroyed  by  the  city  authorities  without  no. 
tice  to  the  owners;  and  such  killing  of  an  unlicensed  dog 
creates  no  liability  for  its  loss.®  "Running  at  large"  in  a 
statute  as  to  animals  means  strolling  without  restraint  or 
confinement,  or  wandering  at  will  unrestrained.  The  re- 
straint need  not  be  physical,  but  may  depend  upon  llie 
habits  or  instinct  of  the  animal."  A  dog  is  "going  at 
large"  in  a  town,  if  he  be  loose  and  following  the  person 
who  has  charge  of  him  through  the  streets  of  the  town  at 
such  a  distance  that  he  cannot  exercise  a  control  over  the 
dog  which  will  prevent  his  doing  mischief.^  Under  the 
statute  of  Kentucky,  a  person  who  finds  a  dog  at  largo  on 
his  premises  without  its  owner  or  keeper  has  a  right  to 
kill  it,  no  matter  what  temptation  enticed  the  dog  to  leave 
home.*  A  dog  at  play  with  his  owner's  son  upon  the 
owner's  land  is  not  "at  large,"  and  a  constable  who,  under 
such  circumstances,  calls  such  a  dog  away  and  shoots  at  it 
while  on  the  owner's  land,  and  then  enters  the  premises 

»  King  V.  Kline,  6  Pa.  St.  318. 

*  Taylor  v.  Newman,  4  Best  &  S.  89. 

'  Morse  v.  Nixon,  6  Jones,  293.  But 
it  appears  from  this  case  that  a  hog  ia 
eatitlcd  to  more  consideration  tlian  a 
dog,  and  the  evidence  of  necessity 
must  be  clear  to  justify  bis  destruc- 
tion. 


*  And  see  ante,  §  1.371. 

*  Leach  v.  Elwood,  3  III.  App.  453; 
Blair  v.  Forehand,  100  Mass.  130;  97 
Am.  Dec.  82. 

6  Russell  V.  Cone,  46  Vt.  600. 
'  Commonwealth  v.  Dow,  10  Met 
382 

*  Bradford  v.  McKibben,  4  Bush,  545. 


2484 


2485 


BIGHTS  OP  OWNERS   OR  KEEPERS. 


§  1378 


I,  and  driven 

in  a  trap  .<nd 

)n  may  shoot 

hog  which  is 

ogs  and  Other 
and  other  jiiu- 
ning  at  large, 
in  certain  sea- 
to  be  killed  by 

police  power, 
3US  animals  be 
es  without  no- 
unlicensed  dog 
r  at  largo"  in  a 
)ut  restraint  or 
lined.  The  re- 
pen  d  upon  the 
g  is  "going  at 
ring  the  person 

of  the  town  at 
iontrol  over  the 
V  Under  the 
dog  at  large  on 

has  a  right  to 
the  dog  to  leave 

son  upon  the 
able  who,  under 
and  shoots  at  it 
rs  the  premises 

§  1371. 

•ood,  3  lU.  App.  4a3; 

d,  100  Mass.  130;  97 

je,  46  Vt.  600. 
th  V.  Dow,  10  Met 

LcKibbeii,4BuBb,545. 


and  attempts  to  shoot  it  again,  is  liable  in  damages.'     A. 
statute  permitting  the  killing  of  dogs  not  registered  "go- 
ing at  large"  does  not  authorize  an  officer  in  entering  a 
person's  dwelling-house  without  his  loave.'^    A  statute  au- 
thorizing the  killing  of  any  dog  found  without  a  collar  is 
constitutional.'    Engraving  upon  the  collar  of  a  dog  the 
initials  of  the  owner's  name  is  not  engraving  on  the  col- 
lar "the  name  of  the  owner"  of  the  dog  within  a  statute 
requiring  this.*     Under  the  Massachusetts  statute  which 
authorizes  "anypersoi^  tc  kill  any  dog  or  dogs  found  and 
being  without  a  collar,"  it  is  lawful  to  kill  a  dog  without 
a  collar  out  of  its  master's  inclosure,  although  under  his 
immediate  care,  and  although  this  is  known  to  the  person 
killing  the  dog.'     But  it  is  held  that  under  the  Indiana 
statute  providing  that  it  shall  be  deemed  unlawful  for 
any  dog  to  run  at  large  without  a  collar  and  tag,  and  it 
shall  be  deemed  lawful  for  any  person  to  kill  the  same,  a 
dog  without  a  collar,  but  not  at  large,  cannot  be  lawfully 
killed  by  a  private  person."    A  statute  authorizing  "any 
person"  to  kill  an  unlicensed  dog  does  not  protect  the 
owner  of  a  dog  which  kills  another  dog.^     By  a  Delaware 
statute  any  one  may  kill  with  impunity  a  dog  which  at 
any  time  has  killed,  wounded,  or  worried  sheep.*     If  a 
dog  bo  seen  pursuing  and  barking  at  sheep,  it  is  a  "wor- 
rying" of  them.®     Under  a  statute  providing  that  certain 
dogs  may  be  killed  "whenever  and  wherever  found,"  an 
officer  may  enter  a  person's  close  without  his  permission 
to  kill  such  a  dog.'"    An  officer  is  not  guilty  of  conversion 
of  a  dog's  collar,  who  under  authority  of  law  kills  < !  c  dog 
and  leaves  the  body  with  the  collar  on  where  he  first  lound 
the  dog." 


'  McAneany  V.  Jewett,  10  Allen,  151. 

2  Bishop  V.  Fahay,  15  Gray,  61. 

3  Morey  v.  Brown,  42  N.  H.  373. 

*  Morey  v.  Brown,  4*2  N.  H.  373. 
» Tower  v.  Tower,  18  Pick.  262. 

*  Lowell  V.  Gathright,  97  Ind.  313. 

'  Hcisrodt  v.  Hackett,  34  Mich.  283; 
22  Am.  Bep.  529. 


8  Milman  v.  Schockley,  1  Honst. 
444. 

•  Campbell  v.  Brown,  1  Grant  Cae. 
82. 

"  Blair  v.  Forehand,  100  Mass.  1.S6; 
1  Am.  Rep.  94;  97  Am.  Dec.  82. 

"  Blair  v.  Forehand,  100  Mass.  13«; 
97  Am.  Dec.  82. 


81370 


ANIMALS. 


24SG 


§  1379.  Killing  or  Injuring  Trespassing  Animals  - 
Impounding.  —  Tho  owner  of  hind  is  not,  us  a  rule,  lial)lo 
for  iin  injury  to  ii  trespassing  animal,  received  on  liis 
land.'  Thus  ho  is  not  liable  for  an  injury  to  an  ox  which 
falls  into  a  pit  on  his  land;''  or  for  an  injury  to  cattle  frf»m 
drinking  maple-sap  left  exposed  in  troughs  there,"  or  <V(>iji 
other  things,  such  as  pickle  brine  and  corrosive 
mate;^  or  for  an  injury  to  a  horse  from  the  falling  dC  a 
tree  which  he  has  set  fire  to  and  left  to  burn  and  full;"'  or 
for  an  injury  to  a  dog  which  impales  hiraaelf  upon  a  lr;i[> 
set  on  tho  premises.^  But  an  adjoining  proprietor  luis 
been  held  liable  for  the  death  of  his  neighbor's  hor^^e 
through  his  permitting  a  yow-trce  to  stand  so  near  (ho 
fence  that  the  horse  could  eat  the  poisonous  leaves  fioiii 
the  limbs  which  projected  over  the  fence.''  So  has  a 
similar  owner  who  let  his  wire  fence  so  decay  that  pieces 
which  fell  into  the  grass  were  eaten  by  his  neighbor's 
cow  and  killed  her.*  In  an  early  English  case,  wIimo  A 
kept  on  his  open  grounds,  near  the  highway,  traps         cd 


I 


•  Chicago  etc.  R.  R.  Co.  i\  Patchin, 
16  111.  201 ;  Gl  Am.  Doc.  65;  Turner  v. 
Tliomas,  71  Mo.  597;  Railroad  Co.  v. 
Skinner,  19  Pa.  St.  302;  57  Am.  Dec. 
654;  (Wlia  v.  R.  R.  Co.,  59  Pa.  St. 
142;  98  Am.  Dec.  317;  Tonawauda 
R.  R.  Co.  V.  Munger,  5  Denio,  255;  49 
Am.  Dec.  239;  Hughes  v.  R.  R.  Co., 
60  Mo.  325.  An  owner  of  land  is  not 
bound  to  fence  against  trespassing 
aniniids:  Lawrence  v.  Combs,  37  N. 
H.  331;  72  Am.  Dec.  332.  In  Knight 
V.  Abert,  6  Pa.  St.  472,  47  Am.  Dec. 
478,  tho  court  said:  "A  man  must 
use  his  property  so  as  not  to  incom- 
mode his  neighbor;  but  the  maxim 
extends  only  to  neighbors  who  do  not 
interfere  with  it  or  enter  upon  it.  He 
who  suffers  his  cattle  to  go  at  large 
takes  upon  himself  the  risks  incident 
to  it.  If  it  were  not  so,  a  proprietor 
oould  not  sink  a  well  or  a  saw-pit,  dig 
a  ditch  or  a  mill-race,  or  open  a  stone 
quarry  or  a  mine-hole  on  his  own  land, 
except  at  the  risk  of  being  made  liable 
for  consequential  damage  from  it,  — 
which  would  be  a  most  unreasonable 
Bfitrictioa  of  his  enjoyment.  He  might 


as  well  bo  required  to  level  a  pre.  j/ice, 
put  a  fence  round  a  swamp,  (u-  cut 
down  reclining  trees.  It  is  eiion^li, 
in  all  reason,  that  his  neighbor '.-i  i  utle 
have  the  range  of  his  forest,  uthout 
imposing  on  him  the  duty  of  Imiking 
to  their  safety.  If  the  owner  ot  Ihuiii 
does  not  choose  to  enjoy  his  liciiise  on 
that  footing,  let  him  keep  tlairi  iit 
home  or  send  a  herdsman  along  with 
them.  The  law  imposes  no  sucli  iluty 
on  the  tenant. " 

2  Knight  V.  Abert,  6  Pa.  St.  47l';  47 
Am.  Dec.  478;  Hughes  v.  R.  11.  Co., 
66  Mo.  325;  Aurora  etc.  R.  R.  Co.  v. 
Grimes,  13  Hi.  585. 

*  Bush  V.  Brainard,  1  Cow.  78;  13 
Am.  Dec.  513. 

*  Hess  V.  Lupton,  7  Ohio,  21G. 

*  Durham  r.  Musselman,  2  IJlackf. 
96;  18  Am.  Dec.  133. 

*Jordin  v.  Crump,  8  Mees.  &,  W. 
782;  but  see  Johnson  v.  Patterson,  14 
Conn.  1;  35  Am.  Dec.  96. 

'  Crowhurst  v.  Amersham  Burial 
Board,  L.  R.  4  Ex.  Div.  5. 

*  Firth  V.  Bowling  Iron  Co.,  3  Cora, 
P.  Div.  254. 


2487 


RKJIITS   OF   OWNERS   OR   KEEPERS. 


§  1379 


ard,  1  Cow.  7S;  13 


with  stinkinj^  meat,  whoso  smell  nttractod  a  ncij^hhor'a 
dog,  and  ho  was  killed,  it  was  hold  that  A  was  liuhlo,  on. 
the  ground  that  A,  knowing  the  natural  instinct^  ftf  .such 
animaln,  had  enticed  the  dog  to  its  death.'  In  iiii  Indi- 
ana case,  where  a  man  dug  a  well  on  an  uniuclused  lot 
in  a  city,  and  then  abandoned  it,  covering  it  with  loose 
boards,  and  a  roving  horse  fell  in,  ho  was  held  linldo,  on 
tho  ground  that,  considering  the  place,  the  pi-obiibility 
was  that  such  a  thing  would  happen,  and  the  land-owner 
should  have  guarded  against  •t.'' 

A  person  in  driving  ori  trispassing  cattle  must  do  so 
in  a  reasonably  careful  manner.''  lie  has  no  right  to  wan- 
tonly injure  them.*  But  one  may  use  such  means  as  are 
necessary  to  drive  trespassing  animals  out  of  his  field, 
and  if  it  results  in  the  mutilation  of  tho  animals,  it  is  not 
criminal."  One  may  drive  trespassing  animals  off  his 
land  with  dogs,®  but  he  may  not  use  a  fierce  dog  for  that 
purpose.'  In  other  words,  he  must  not  use  unnecessary 
violence  in  ejecting  the  trespassing  animal.'*  Ho  is  not 
liable  for  the  death  of  a  cow  caused  by  her  bocotning 
frightened  by  the  dog  and  attempting  to  jump  a  fence." 
A  person  has  no  right  to  kill  a  dog  which  is  merely  tres- 
passing on  his  land  and  doing  no  damage;'"  but  if  it  is 
necessary  to  protect  his  property,  the  dog  may  bo  shot." 
The  killing  of  trespassing  hens'^  or  trespassing  turkeys  is 
not  justifiable.'^  That  the  defendant  notified  the  owner  that 
if  he  found  his  animals  trespassing  on  his  property  ho 
would  kill  them  gives  no  right;  "it  is  a  mere  threat  to  do 


»  Townsend  v.  Wathen,  9  East,  277. 

^  Young  y.  Harvey,  l(i  lud.  .'514. 

»Mdutire  v.  Plaiated,  57  N.  H. 
60G;  Tottuii  V.  Cole,  33  Mo.  138;  82 
Am.  Dec.  157. 

*  Loomis  V.  Terry,  17  Wend.  496; 
31  Am.  Dec.  300;  Snap  v.  People,  19 
111.  80;  68  Am.  Dec.  582. 

*  Avery  V.  People,  11  111.  A^p.  332. 

*  Wood  V.  Lame,  9  Mich.  lo8;  Da- 
vis V.  Campbell,  2;i  Vt.  236;  Clark  v. 
Adams,  18  Vt.  425;  46  Am.  Dec.  161. 


'  Amick  V.  O'Hara,  6  Blvck/.  208. 

*  Richardson  i'.  Carr,  1  llarr.  (Del.) 
142;  25  Am.  Dec.  05. 

»  Smith  r.  Waldorf,  13  llun,  127. 

"Brent  v.  Kimball,  00  lU.  211;  14 
Am.  Rep.  35. 

"  Lipe  V.  Blackwelder,  25  111.  App. 
119. 

»•••  Clark  V.  Keliher,  107  Mass.  406j 
Johnson  v.  Patterson,  14  Conn,  1 ;  35 

"  Reia  v.  Strattou,  23  111.  App.  314. 


§1379 


ANIMALS. 


2488 


an  illegal  act,  and  would  not  vary  the  case."*  So  an  angry- 
reply,  "  Go  and  kill  him,  if  you  want  to,"  made  by  the 
owner  of  an  animal,  as  a  tamed  buffalo,  to  one  complain- 
ing of  a  trespass,  does  not  license  him  to  kill  it  after 
a  lapse  of  nearly  half  a  year.^  The  owner  of  land  may 
drive  trespassing  animals  from  his  land  into  the  high- 
way and  leave  them  there,*  unless  they  come  through  a 
division  fence  which  he  has  neglected  to  keep  up,  in  which 
case  he  should  turn  them  back  into  the  adjoining  land, 
and  not  into  the  highway.*  Where  it  is  the  custom  of 
the  country  to  permit  stock,  boars,  and  bulls  to  run  at 
large,  and  the  estray  law  of  the  state  gives  a  remedy  for 
their  depredations,  a  person  is  not  justified  in  injuring 
one  taken  in  the  act  of  breaking  fences  or  destroying 
crops.®  An  owner  of  domestic  animals  has  the  right  to 
pasture  them  on  the  commons  of  incorporated  towns,  in 
the  a1  icoof  regulations  to  the  contrary;  anr^.  such  con- 
duct ices  not  diminish  his  right  to  compensation  from 
those  who  injure  them.®  Untying  and  removing  a  horse 
from  a  hitching-post  standing  on  the  highway,  to  which 
he  had  been  hitched  by  the  plaintiff,  being  the  owner, 
and  to  the  use  of  which  post  the  plaintiff  had,  if  not  an 
exclusive  right,  as  good  a  right  as  the  defendant,  is  a  tech- 
nical trespass.'  The  legislature  may  require  owners  of 
stock  to  keep  them  from  trespassing  on  the  lauds  of 
others.^ 

It  is  not  the  person's  duty  to  impound  the  animals  or  se- 
cure them,  unless  so  provided  by  statute;  but  if  he  drives 
them  beyond  the  highway,  and  they  stray  away,  he  is 


»  Clark  V.  Keliher,  107  Mass.  406; 
Johuijou  V.  PattersoD,  14  Conn.  1; 
35  Am.  Dec.  9G. 

^  Ulery  v.  Jones,  81  111.  403. 

'  Humphrey  v.  Douglass,  11  Vt.  22; 
34  Am.  Dec.  G68;  Cory  v.  Little,  6  N. 
H.  213;  25  Am.  Dec.  458;  Tobin  v. 
Deal,  GO  Wis.  87,  50  Am.  Rep.  345, 
holding  that  he  must  not  drive  them 
into  a  highway  leading  away  from  tho 
direction  of  the  owner's  land. 


*  Knour  v.  Wagoner,  16  Ind.  414; 
Clark  V.  Adams,  18  Vt.  425;  46  Am. 
Dec.  161;  Palmer  v.  Silverthorn,  32 
Pa.  St.  65;  Wood  v.  La  Rue,  9  Mich. 
158. 

*  Bost  V.  Mingues,  64  N.  C.  44. 

®  Chicago  etc.  R.  R.  Co.  v.  .Jones, 
59  Miss.  465. 

'  Bruch  V.  Caiter,  32  N.  J.  L. 
554. 

'  Anderson  v.  Locke,  64  Miss.  283. 


2489 


RIGHTS   OP   OWNERS   OR  KEEPERS. 


§1379 


liable/  If  he  puts  them  in  a  pound,  he  must  see  that  it 
is  in  a  fit  and  safe  condition,^  and  that  they  are  properly 
supplied  with  food  and  water.^  If  there  is  no  sufficient  pub- 
lic pound,  he  may  impound  them  on  his  own  or  another's 
property.*  He  is  not  responsible  for  injuries  which  they 
may  receive  from  other  cattle  in  the  pound.*  When  a 
pound  fence  intended  to  confine  horses  and  cattle  is 
proved  to  be  sufiicient  for  the  purpose,  the  mere  fact  that 
a  horse  confined  in  such  pound,  and  properly  cared  for 
there,  kills  himself  by  rushing  against  such  fence,  or  by 
kicking  against  it,  or  by  trying  to  clear  it  in  leaping,  does 
not  render  the  municipal  corporation  liable.®  The  keeper 
of  a  pound  is  bound  to  keep  impounded  animals  in  the 
pound,  and  there  only,  unless  removal  is  necessary  to 
ja.  i,  them  from  injury,  and  if  a  constable,  with  knowledge 
that  an  impounded  animal  has  been  so  removed,  sells  it 
at  auction  at  the  request  of  the  pound-keeper,  the  request 
will  not  protect  him,  and  he  is  guilty  of  a  trespass.^ 

Illustrations. — A's  mule  got  into  B's  grounds  in  conse- 
quence of  the  insufficiency  of  B's  fence,  and  he  killed  it.  Held, 
that  he  was  liable  to  A  for  its  value:  Dickson  v.  Parker,  3  How . 
(Miss.)  219;  34  Am.  Dec.  78.  M.,  upon  whose  land  was  an 
unguarded  slough-well,  and  C,  an  adjoining  owner,  in  order 
to  save  expense  of  fencing,  mutually  agreed  that  the  stock  of 
eacli  in  the  fall  of  the  year  might  pasture  upon  the  land  of  the 
other;  there  was  no  special  stipulation  to  protect  from  injury 
the  stock  of  one  while  on  the  land  of  the  other.  Held,  tliat  M. 
was  not  liable  for  tho  loss  of  C.'s  horse  in  the  slougli-vsrell:  Mc- 
Gill  v.  Covipton,  66  111.  327.  A's  hogs,  which  lawfully  rati  at 
large,  were  in  the  habit  of  sleeping  under  B's  building.  While 
there,  the  floor  broke  down,  defendant  having  overloaded  it, 
and  killed  the  hogs.  Held,  that  B  was  not  liable:  Christy  v. 
Hufjhes,  24  Mo.  App.  275.  The  Alabama  code  exempts  the 
owner  of  animals  from  liability  for  trespass  on  uninclosed  land, 
and  further  provides  that  one  who  injures  or  destroys  an  animal 


»  Knott  V.  Digges,  6  Har.  &  J.  230. 

•  Wilder  V.  Speer,  8  Ad.  &  E.  547; 
Bignen  V.  Clarke,  5  Hurl.  &  N.  485. 

*  Adams  v.  Adams,  13  Pick.  384. 

♦  Hiker  v.  Hooper,  36  Vt.  457j  82 
Am.  Dec.  G46. 


*  Brightman    v.   Grinnell,   9   Pick. 
14. 

*  Greencastle  v.  Martin,  74  Ind.  449; 
39  Am.  Rep.  93. 

'  Collins  V.  Fox,  48  Conn.  490. 


1380 


ANIMALS. 


2490 


so  trespassing  shall  be  liable  in  five  times  its  value.  The  owner 
of  land  tied  up  a  horse  trespassing  on  his  land,  and  the  horse 
was  found  choked  to  death  by  the  rope.  Held,  that  the  question 
of  negligence  in  the  manner  of  tying  was  only  material  on  the 
question  of  whether  the  horse's  death  was  the  proximate  con- 
sequence of  the  tying;  that  if  it  was,  the  liability  existed:  Wil- 
hite  V.  Spmkman,  79  Ala.  400.  A  plaintiflF's  horses  escaped 
from  his  inclosure  against  his  will,  and  he  immediately  went 
in  search  of  them  to  put  them  up,  but  before  he  found  them, 
they  were  seized  by  the  police  constable  of  the  town  where  they 
were  found  running,  who  impounded  them  under  the  ordinance 
of  the  town.  Held,  that  under  such  circumstances  the  horses 
were  not  running  at  large  in  the  legal  sense  of  the  term,  and 
that  the  constable  had  no  right  to  detain  them  from  the  owner: 
Kinder  v.  Gillespie,  63  111.  88.  A  negligently  placed  a  barrel  of 
fish-brine  on  ji  public  street.  Held,  liable  to  the  owner  of  a 
cow  wlio  drank  thereof,  though  the  brine  was  poured  into  the 
street  by  some  third  person:  Heney  v.  Dennis,  93  Ind.  452;  47 
Am.  Rep.  378. 

§  1380.  Rights  and  Liabilities  of  Finders  of  Animals. 
— A  finder  of  a  stray  animal  has  no  right  to  use  him.* 
One  who  finds  a  stray  horse  and  uses  it,  knowing  the 
owner,  is  liable  for  its  value  if  it  die  while  in  his  hands;" 
60  where,  not  knowing  the  owner,  he  injures  the  beust.^ 
The  owner  of  an  animal  taken  up  by  a  person  knowing 
the  ownership  may  replevy  him  without  tendering  the 
costs  and  expenses.     The  animal  is  not  an  "estray."^ 


1  Weher  r.  II utiuaa,  7  Col.  13,  49 
Am.  Rup.  .3!{'.),  tlio  court  saying:  "The 
argiiuiuat  that  tlio  continuous  work- 
ing; of  cstniy  horses  in  livery,  as  in 
tliid  case,  iii;iy  lie  justified  on  the 
groimil  of  iicce-isity,  assigning  as  such 
necessity  tint  the  aaimals  require  ex- 
ercise to  jir  '^.eive  them  from  injury, 
or  a  necessity  to  cut  down  the  ex- 
penses of  keoiiiiij;  them,  or  to  place 
it  upon  the  iTionud  of  a  benefit  to  the 
owner,  as  iill'inling  better  opportuni- 
ties for  recognition,  is  not  only  illusory 


and  absurd,  but  it  is  in  contraven*^ion 
of  legal  principles.  The  l;iw  hum  the 
earliest  times  has  regarded  the  using 
of  estrays,  or  distrained  aninial>i,  as  a 
tort,  save  only  when  the  use  was  neces- 
sary to  their  preservation,  as  in  the 
case  of  milk  cows."' 

*  Watts  V.  Ward,  1  Or.  8G;  02  Am. 
Dec.  299. 

^  Murgoo  V,  Cogswell,  1  E.  D.  Smith, 
359. 

♦Walters  v.  Glats,  29  Iowa,  437. 


ommmmmmmmirmmmlKf. 


2491 


LIABILITIES   OF   OWNERS   OR   KEEPERS.  §  1381 


1  Or.  8G;  C2  Am. 


CHAPTER  LXXIV. 

LIABILITIES  OF  OWNERS  OR  KEEPERS  OF  ANBIALS. 


§  1381. 

§  1382. 
§  1383. 
§1384. 
§  1385. 
§  1386. 
§  1387. 
§  1388. 
§  1389. 
§  1390. 

§  1391. 
§  1392. 
§  1393. 
§  1394. 


Liability  of  owner  or  keeper  of  animal  —  Agister  —  Harborer  -  Joint 
Owners. 

Liability  for  act  of  servant  —  Notice  to  servant. 
Injuries  by  animals,  wild  and  tame  —  Distinction. 
Injuries  by  tame  animals. 
Proof  of  scienter. 
Liability  enlarged  by  statute. 
Contributory  negligence  —  Children. 
Trespassers  —  Watch-dogs. 

Negligence  in  driving,  securing,  or  using  animals. 
Owner  transferring  care  of  animals  —  Bound  to  notify  of  vicious  pro- 
pensities. 
Liability  for  trespasses  of  animals. 
Driving  cattle  on  highway. 
Keeping  diseased  animals. 
Selling  diseased  animals. 

§  1381.    Liability  of  Owner  or  Keeper  of  Animal 

Agister  —  Harborer  of  Animal  — Joint  Owners.  — The 
owners  or  keepers  of  animals,  on  the  ground  that  they 
are  under  a  legal  obligation  to  so  control  them  as  to  pre- 
vent them  doing  injury,  are  liable  for  any  injuries  which 
they  may  inflict.^  The  act  of  the  aninial  need  not  be 
vicious.  If  it  cause  damage,  it  may  arise  from  the  ani- 
mal's playfulness  or  mischief;  as  if  a  dog  playfully  injure 
one,2  or  a  young  horse,  negligently  allowed  to  go  loose  in 
the  public  streets,  while  running  and  gamboling  and  kick- 
ing his  heels  in  the  air,  kicks  a  pedestrian  and  injures 
him.^  So  an  owner  of  a  hog  who  has  permitted  it  to  run 
at  large  has  been  held  liable  for  damage  caused  by  its 
apoearance  at  the  side  of  a  road,  frightening  a  horse.*    He 

Y. 


'  Rossell  V.  Cottom,  31  Pa.  St.  525; 
Marsel  v.  Bowman,  62  Iowa,  57. 

•'Line  v.  Taylor,  3  Fost.  &  F.  731; 
Evans  v.  McDermott,  49  N.  J.  L.  16.3; 
60  Am.  Rep.  602;  or  a  ram:  Oakes  v. 
Spauidiug,  40  Vt.  347;  94  Am. Dec.  404. 


V.    McCoy,    39    N. 


'  Dickson 
400. 

*  Jewett  V.  Gage,  55  Mo.  5.38;  92 
Am.  Dec.  615.  And  see  Sherman  v. 
Favour,  1  Allen,  191. 


§  1381 


ANIMALS. 


2492 


who  keeps  or  harbors  an  animal  about  his  premises,  or 
permits  him  to  resort  there,  is  liable  as  an  owner,  and  the 
plaintiff  need  not  prove  that  he  is  really  the  owner.^ 
Where  a  liorse-railroad  company  was  sued  for  damag(3s 
caused  by  the  bite  of  a  dog,  and  it  appeared  that  the  dog 
was  kept  about  the  stable  by  an  employee  with  the  knowl- 
edge of  the  superintendent,  it  was  held  that  the  company 
was  properly  made  liable.''  But  the  owner  is  liable,  though 
he  have  not  the  actual  custody  at  the  time;  as  where  a 
dog  is  temporarily  in  the  custody  of  a  neighbor,  or  has 
been  put  into  the  hands  of  his  son  by  the  owner,  to  avoid 
his  creditors.^  But  for  a  dog  which  hangs  around  a  house, 
in  spite  of  being  driven  away,  the  housekeeper  is  not  re- 
sponsible;* nor  is  an  employer  liable  for  a  dog  whicli  is 
owned  by  and  follows  a  hired  laborer  of  his  to  his  work 
each  day.'  Where  the  owner  and  the  keeper  are  different 
persons,  the  latter  is  the  one  liable,  as  the  agister  of  cattle,* 


1  Wilkinson  v.  Parrott,  32  Cal.  102; 
Barrett  r.  R.  R.  Co.,  3  Allen,  101; 
Cunimings  v.  Riley,  52  N.  H.  368; 
Marsh  r.  Jones  21  Vt.  378;  62  Am. 
Dec.  07;  Frjiinmoll  r.  Little,  16  Ind. 
251;  Sniitli  v.  Montgomery,  52  Me. 
187;  McKone  v.  Wood,  5  Car.  &  P.  1; 
Keenan  v.  (rutta  Percha  Rubber  Co., 
46  Hun,  544. 

■'  Barrett  v.  R.  R.  Co.,  3  Allen,  101, 
the  court  sayinr;:  "As  it  would  in 
many  ca:^eH  bo  diliioult  to  prove  that 
any  person  bad  property  in  the  ani- 
mal, the  law  holds  the  person  who 
harbors  hiia  responsible  for  the  dam- 
age whicli  ho  may  do  while  in  his  cus- 
tody or  control.  There  was  evidence 
at  tlie  trial  that  tlie  dog  which  inflicted 
the  injury  on  tlie  plaintiff  was  kept  on 
the  premiiies  of  the  defendants  for 
several  weeks  by  a  person  in  their  em- 
ployment, wlio  had  the  charge  and 
superiiitendonee  of  their  stables;  and 
there  was  also  eyidence  that  tended  to 
show  that  this  was  done  with  the 
kuowleilgo  anil  i-nplied  assent  of  their 
general  agent  or  superintendent.  This 
was  clearly  Hufficient  to  warrant  the 

t'ury  in  finding  that  tlio  dog  was  kept 
ly  the  defendants.     As  they  could  do 
no  act  except  through  their  agents,  it 


was  competent  to  infer  that  in  k(,ep- 
ing  the  dog  under  the  circumstances 
disclosed  by  the  ev'  bnco,  their  au'cut 
was  acting  in  their  behalf.  It,  w  n 
ui'ged  by  the  counsel  for  the  dcfeinl- 
ants  that  they,  being  a  corporalidu 
created  for  a  specific  purpose,  laaiidt 
through  their  officers  and  agent:-)  be 
made  liable  as  keepers  of  a  dog  ti>  the 
penalty  prescribed  by  the  statutes, 
But  it  is  impossible  for  us  to  deter- 
mine, as  a  matter  of  law,  that  a  coipo- 
ration  established  for  the  purposi^  of 
building  and  running  a  railroad  liy 
horse -power  would  be  going  idfrd  rirm 
in  either  owning  or  keeping  a  do:,'. 
On  the  contrary,  it  would  seca  to 
come  quite  within  the  scope  ol  the 
power  and  authority  granted  to  tiieiu 
to  keep  dogs  to  protect  their  staljks 
and  property  from  incendiaries  ami 
thieves.' 

3  Marsh  v.   Jones,  21  Vt.  378;  'yl 
Am.  Dec.  67. 

*  Smith  V.  R.  R.  Co.,  .30  L,  J.  Com. 
P.  22;  L.  R.  2  Com.  P.  4. 

*  Auchmuty  v.  Ham,  1  Denio,   (!).'>. 
8  Kcnnett  v.  Durgin,  59  N.   If.  ."..li); 

Rossell  i\  Cottom,  31  Pa.  St.  ~yl'>\ 
Tewksbury  i\  Bucklin,  7  N.  11.  ."jIS; 
Ward  V.  Brown,  64  111.  307;  10  Am. 


2492 

remises,  or 
er,  and  the 
;he  owuGi'.' 
)r  damag(3S 
lat  the  (log 
I  the  knowl- 
le  company 
ible,  though 
as  where  a 
ibor,  or  has 
ler,  to  avoid 
ind  a  house, 
er  is  not  ro- 
iog  which  is 
I  to  his  work 
are  different 
;ter  of  cattle,* 

fer  that  in  k'-op- 
;ho  circumst^uK'cs 
lance,  their  ajieut 
buhalf.     It,  WIS 
I  for  the  dcfeail- 
ug  a  corporation 
I  purpose,  caiiuot 
•3  ami  ageiil:-!  liu 
Irs  of  a  (lo^  to  tlio 
[by   the   statute^;. 
for  us  to  ik'ti'r- 
|law,  that  a  coipo- 
r  tlio  puriKt-ii-  of 
ig  a  raih'o;ul  \>y 
le  going  ultra  rirr.f 
kcei)ing  a  llo^'. 
would    seovi  to 
|the  scopi!  <>l    thu 
granted  ti>  llu;iii 
[tect  their  staUKs 
incendiaries  aiul 

21  Vt.  378;  5-2 


2493 


LIABILITIES   OP   OWNERS   OR   KEEPERS.  §  1381 


Pc  3GL.  J.  Com 

P.  4. 
im,  1  Denio, 
|in,  r)9  N.   II. 

31    Pa.    St.. 
iin,  7  N.  II. 


.)IS; 


or  the  depasturer  of  sheep/  But  it  has  been  hold  in  Mas- 
sachusetts that  at  common  law,  a  party  into  whose  land 
agisted  cattle  escape  may  maintain  an  action  against 
either  the  owner  or  the  agister,  at  his  election.^  The  lessee 
of  a  farm,  having  care  of  it  and  the  stock  thereon,  is  as 
liable  for  damages  by  the  cattle  as  if  he  were  the  owner." 
The  bailee  of  a  vicious  dog,  knowing  him  t  be  vicious, 
is  as  much  bound  to  restrain  him  as  the  ownv^r.^ 

Joint  owners  of  an  animal  are  liable  jointly ,°  but  separate 
owners  of  several  animals  are  not  jointly  liable  for  injuries 
done  by  them  all  at  the  same  time.®  Two  joint  owners 
of  a  vicious  animal  are  each  bound  to  restrain  him.  If 
he  is  not  restrained,  and  one  owner  is  sued  and  com- 
pelled to  pay  damages  for  an  injury  done  by  him,  such 
owner  cannot  enforce  a  claim  for  contribution  against 
the  co-owner.  The  case  is  within  the  rule  that  there  is 
no  right  of  contribution  between  wrong-doers.'  One  mem- 
ber of  a  firm  may  be  sued  as  the  keeper  of  a  dog  owned 
and  kept  by  the  firm,  under  the  Maine  statute.^  Under 
the  Vermont  statute,  the  owner  of  a  dog  may  be  held  lia- 
ble for  all  the  damage  done  to  a  flock  of  sheep  by  a  pack 
of  dogs,  of  which  his  dog  was  one." 

The  identity  of  an  animal  was  allowed  to  be  proved  by 


111.  307;  10  Am. 


Rep.  561;  Cook  v.  Morea,  33  Ind.  497; 
Lyons  v.  Merrick,  105  Mass.  71; 
Wales  V.  Ford,  8  N.  J.  L.  267;  Wey- 
mouth y.  Gilo,  72  Me.  446.  But  the 
owner  would  be  liable  if  he  selected  a 
reckless  or  irresponsible  agister  or 
bailee:  Ward  v.  Brown,  64  111.  307;  10 
Am.  Rep.  561. 

'  Barnum  v.  Van  Dusen,  16  Conn. 
200. 

-  Sheridan  v.  Bean,  8  Met.  284;  41 
Am.  Dec.  507. 

»  Moulton  V.  Moore,  56  Vt.  700. 

♦  Marsel  v.  Bowman,  62  Iowa,  57. 

''Smith  V.  Jaques,  6  Conn.  530; 
Oakcs  V.  Spaulding,  40  Vt.  347;  94 
Am.  Dec.  404;  Spalding  i;.  Oakes,  42 
Vt.  343.  See  Buddington  v.  Shearer, 
20  Pick.  477;  22  Pick.  427. 

"  Van  Steeabergw.  Tobias,  17  Wend. 
562;   31    Am.   Dec.   310;    Russell   v. 


Tomlinson,  2  Conn.  200;  Carroll  v. 
Weiler,  1  Hun,  605;  Auchtnuty  v. 
Ham,  1  Denio,  495;  Westgate  i\  Carr, 
43  111.  450;  Buddington  v.  Shearer,  20 
Pick.  477;  22  Pick.  427;  Partenheimer 
V.  Van  Order,  20  Barb.  479;  Adams  v. 
Hall,  2  Vt.  9;  19  Am.  Dec.  690; 
Denny  v.  Carroll,  9  Ind.  72;  Yeazel  v. 
Alexander,  58  111.  2G3;  Little  Schuyl- 
kill Nav.  Co.  V.  Richards,  57  Pa.  St. 
147;  98  Am.  Dec.  209;  Slater  v.  Mer- 
sereau,  64  N.  Y.  147;  Chipman  v. 
Palmer,  9  Hun,  520;  Cogswell  v. 
Murphy,  46  Iowa,  44.  Unless  the 
separate  owners  hcvo  a  joint  control: 
Ozburn  v.  Adam.9,  70  111.  291.  And 
under  a  statute:  Kerr  v.  O'Connor, 
63  Pa.  St.  341. 

'  Spalding  v.  Oakes,  42  Vt.  343. 

•  Grant  v.  Richer,  74  Me.  4S7. 

'  Remele  v,  Donahue,  54  Vt.  555. 


1382 


ANIMALS. 


2404 


tLe  opinion  of  a  witness  who  heard  the  dog  bark,  and 
recognized  it;^  in  another,  by  proof  that  it  had  been  seen 
in  company,  at  another  time,  of  another  dog,  which  was 
proved  to  have  been  engaged  in  the  sheep-killing,  the 
subject  of  the  action.''  In  a  New  York  case,  where  two 
dogs  of  different  sizes  killed  sheep  in  the  dark,  it  was  held 
that  the  jury  rightly  determined,  in  the  absence  of  direct 
proof,  that  the  biggest  dog  killed  the  most  sheep.' 

Illustrations.  —  The  toll-taker  at  a  bridge  keeps  a  vicious 
dog,  which  injures  a  person.  He  sues  the  owner  of  the  bridge 
for  damages.  Held,  that,  it  appearing  that  he  did  not  author- 
ize the  dog  to  be  kept,  and  that  a  dog  was  not  necessary  for  the 
conduct  or  protection  of  the  bridge,  he  was  not  liable:  Baker  v. 
Kinsey,  38  Cal.  631;  99  Am.  Dec.  438.  A  city  permitted,  upon 
a  public  square,  the  erection  of  a  booth  for  the  exhibition  of  a 
"sacred  ox."  While  the  ox  was  being  exercised  upon  the  liigh- 
way,  he  frightened  a  horse,  whose  owner  thereby  sustained 
injury.  Held,  that  the  city  was  not  liable  for  the  injury:  Cole 
y.  Newburyport,  129  Mass.  594;  37  Am.  Rep.  394.  A  dog, 
owned  by  and  licensed  in  the  name  of  a  superintendent  of  a 
poor-farm  of  a  city,  is  kept  at  the  farm  with  the  knowledge  of 
one  of  the  overseers  of  the  poor  of  the  city,  and,  without  objec- 
tion by  liim,  is  fed  with  food  furnished  by  the  city  for  use  at 
the  farm,  and  during  a  portion  of  the  time  is  allowed  the  run 
of  the  farm.  Held,  not  to  show  that  the  city  is  a  "  keeper  "  of 
the  dog:  ColUnglll  v.  Haverhill,  128  Mass.  218.  B  being  the 
joint  owner  of  a  ram,  and  knowing  of  its  butting  propensities, 
took  it,  of  his  own  accord,  without  permission  of  or  consultation 
with  A,  the  other  joint  owner,  and  in  A's  absence,  and  put  it 
into  B's  pasture,  where  the  injury  was  done;  A  not  having 
given  any  directions  as  to  restraining  the  ram,  and  not  inter- 
esting himself  about  it,  although  he  knew  of  its  propensity  and 
habit  of  doing  violence  to  persons.  Held,  that  he  was  liable 
equally  with  B  for  injuries  caused  by  the  ram's  butting,  though 
he  had  not  been  consulted  as  to  the  keeping,  care,  and  mannge- 
ment  of  it:  Oakes  v.  Spaulding,  40  Vt.  347;  94  Am.  Dec.  404. 

§  1382.     Liability  for  Act  of  Servant. — A  man  is  liable 

for  the  negligent  care  or  use  of  animals  by  his  servant, 
whereby  an  injury  happens,*  provided  the  servant  is  uct- 


»  Wilbur  V.  Hubbard,  35  Barb.  303. 
»  Carroll  v.  Weiler,  i  Hun,  605. 
•  Wilbur  V.  Hubbard,  35  Barb.  303. 


*  Michael  v.  Alestree,  2  Lev.  172; 
Frazer  v.  Kimler,  5  Thomp.  &  C. 
16. 


2495 


LIABILITIES   OF  OWNERS  OR  KEEPERS. 


§1383 


ing  at  the  time  within  the  scope  of  his  emiolojnncnt.  If 
he  is  acting  at  the  time  outside  of  the  authority  given 
him,  the  master  is  not  liable/  And  in  any  event,  negli- 
gence either  in  the  master  or  the- servant  must  be  shown.'' 
And  the  relation  of  master  and  servant  must  be  estab- 
lished.^ 

ILLUSTRA.TIONS.  —  A's  hofse  runs  away  and  injures  B.  A's 
Bervant  was  negligent  in  not  properly  securins  aJid  restraining 
the  horse.  A  is  liable:  Hummdl  v.  Webster,  Bright.  N.  P.  133; 
McCahill  v.  Kipp,  2  E.  D.  Smith,  413;  Streett  v.  Laumier,  34  Mo. 
469.  A  hostler  at  an  inn  omits  to  put  the  bits  in  tlio  mouth  of 
a  guest's  horse,  whereby  it  becomes  unmanageable  and  damages 
the  buggy  of  a  third  person.  The  innkeeeper  is  liable:  Hall  v. 
Warner,  60  Barb.  198.  A's  servant  willfully  sots  A's  dog  upon 
the  cattle  of  B.  A  is  not  liable  to  B:  Steele  v.  Smith,  3  E.  D. 
Smith,  321.  A  daughter  sets  her  father's  dogs  upon  A's  hog, 
which  is  bitten  and  killed.  The  father  is  not  responsible  to 
A:  Tifft  V.  Tifft,  4  Denio,  175. 

§  1383.  Injuries  by  Animals,  Wild  and  Tame — Dis- 
tinction.—  As  we  have  seen,*  the  law — with  reference  to 
the  rights  of  property  which  may  be  acquired  in  them  — 
divides  animals  into  two  classes, — animals  ferx  naturse, 
and  animals  mansuetse  naturse,  i.  e.,  wild  animals  and  tame 
animals.  This  distinction  is  maintained  also  in  consid- 
ering the  liabilities  of  the  owners  of  animals  for  injuries 
done  by  them.  It  is  stated  in  a  leading  case  in  these 
words:  "It  is  a  well-settled  principle  that  in  all  cases 
where  an  action  of  trespass  or  case  is  brought  for  mis- 
chief done  to  the  person  or  personal  property  of  another 
by  animals  mansuetss  naturse,  such  as  horses,  oxen,  cows, 
sheep,  swine,  and  the  like,  the  owner  must  be  shown  to 
have  had  notice  of  their  viciousness  before  he  can  be 
charged,  because  such  animals  are  not  by  nature  fierce 
or  dangerous,  and  such  notice  must  be  alleged  in  the  dec- 


1  McManus  v.  Crickett,  1  East,  106; 
Middleton  v.  Fowler,  1  Salk.  282; 
Steele  v.  Smith,  3  E.  D.  Smith,  321; 
Weldoa  V.  R.  R.  Co.,  5  Boaw.  576; 
Coheu  V.  R.  R.  Co.,  69  N.  Y.  170. 


'  Sullivan  v.  Scripture,  3  Allen, 
664. 

«  Milligan  v.  Wedge,  12  Ad.  &  E. 
737. 

*  Ante,  §§  1365  et  aeq. 


§1383 


ANIMALS. 


2496 


laration;  but  as  to  animals  ferte  naturse,  such  as  lions, 
tigers,  or  the  like,  the  person  who  keeps  them  is  liable 
for  any  damage  they  may  do  without  notice,  on  the  ground 
that  by  nature  such  animals  are  fierce  and  dangerous."' 
From  this  extract,  it  will  be  seen  that  the  distinction  is 
not  drawn  exactly  at  the  division  line  between  wild  and 
tame  animals.    It  speaks  of  animals /eras  naturse;  such  as 
lions,  tigers,  or  the  like.     This,  then,  should  be  borne  in 
mind, — for  the  reason  that  in  some  cases  the  language  of 
the  courts  has  been  loose, — viz.,  that  when  an  animal  be- 
longs to  the  class  feras  natune,  the  owner  is  not  always 
liable  at  all  events;  and  when  an  animal  belongs  to  the 
class  mansuetse  naturse,  the  owner  may  be  liable  without 
evidence  of  notice  of  its  mischievous  disposition.    The  cor- 
rect rule  is  given  by  Judge  Thompson''  thus:  "  Where  mis- 
chief is  done  or  injuries  inflicted  by  animals  whose  generic 
propensities  or  habits  are  neither  mischievous  nor  dangei- 
ous,  in  order  to  charge  the  owner  for  damages  done  by 
such  animals  it  is  necessary  to  allege  and  prove  that  such 
owner  knew  or  had  notice  that  the  animals  were  accua- 
tomed  to  such  or  similar  mischief,  or,  to  speak  technically, 
the  scienter  must  be  alleged  and  proved.     In  such  case, 
actual  negligence  must  be  shown.'    But  if  the  mischief 
done  is  in  accordance  with  the  generic  propensities  of  the 
animal  committing  it,  scienter  need  not  be  alleged  and 
proved,  but  the  owner  is  presumed  negligent.    An  excep- 
tion to  this  general  rule  of  common  law  is  found  in  the 
case  of  the  escaping  of  that  smaller  class  of  animals  which 
are  not  usually  tamed,  such  as  rabbits,  pigeons,  etc.,  from 
the  land  of  one  to  that  of  another.     No  action  could,  in 
general,  be  supported  for  damage  done  by  them,  because 
the  instant  they  escaped  from  the  land  of  the  owner  his 

1  Van  Leuven  v.  Lyke,  1  N.  Y.  515;  Stumps  v.  Kelley,  22  111.  140;  Worm- 

49  Am.  Doc.  346.  ley  v.  Gregg,  65  111.  251;  Buxeudiu  v. 

*  Thompson  on  Negligence,  201.  Sharp,  2  Salk.  662. 
'  Vrooman  v.  Lawyer,  13  Johns.  339; 


2496 


2497 


LIABILITIES   OP  OWNERS   OR  KEEPERS. 


1383 


eh  as  lions, 
jm  is  liable 
1  the  ground 
langerous."  • 
istinction  is 
ien  wild  and 
urse;  such  as 
be  borne  in 
3  language  of 
m  animal  he- 
s  not  always 
)elongs  to  the 
iable  without 
ion.    ThecoF- 
"  Where  mia- 
whose  generic 
is  nor  dangei- 
lages  done  by 
rove  that  such 
Is  were  accus- 
ik  technically, 
In  such  case, 
the  mischief 
ensities  of  the 
e  alleged  and 
t.    An  excep- 
found  in  the 
nimals  which 
Ions,  etc.,  from 
Ition  could,  in 
;hem,  because 
,he  owner  his 

_  III.  140;  Worm- 
"251;  Buxeu(liu». 


property  in  them  ceased."*  Tliat  the  keeper  of  a  suvago 
animal,  such  as  a  lion,  tiger,  bear,  wolf,  etc.,  is  an  in- 
surer against  injuries  which  it  may  commit;  that  ho  is 
bound  to  keep  it  so  confined  that  it  may  bo  safe,  and  that 
the  keeping  of  such  an  animal,  knowing  its  vicious  dis- 
position, is  the  gist  of  tho  action,  is  a  principle  well  set- 
tled by  the  authorities,^  though  occasionally  criticised  and 
condemned  by  writers  and  judges." 


1  Hiasloy  v.  Wilkinson,  Cro.  Car. 
387;  Cooper  v.  Marshall,  1  Burr.  259; 
Bowlston  V.  Hardy,  Cro.  Eliz.  547;  5 
Coko,  105. 

» Smith  V.  Cook,  1  Q.  B.  Div.  79; 
May  V.  Burclett,  9  Q.  B.  101;  McCas- 
kill  V.  Elliott,  5  Strob.  198;  53  Am. 
Dec.  70C;   Kelly  w.  Tilton,  3  Keyea, 
2G3;  Partlow  ?;.  Haggerty,  85  Ind.  178; 
Koney  v.  Ward,  2  Daly,  295;  Oakea  v. 
SpauUling,  40  Vt.  351;  94  Am.  Dec. 
404;  Morbus  v.  Dodge,  38  Wis.  300; 
Congress  Spring  Co.  v.  Edgar,  99  U. 
S.  045;  Scribner  V.  KcUey,  38  Barb.  14; 
Bczotti  V.  Harris,  1   Fost.  &  F.  92; 
Gliilden  v.  Moore,  14  Neb.  84;  45  Am. 
Rep.  98.  In  Congress  Spring  Co.  v.  Ed- 
gar, 99  U.  S.  645,  one  of  the  latest  de- 
cisions on  this  subject,  Mr.  Justice  Clif- 
ford said:  "Three  or  more  classes  of 
cases  exist  in  which  it  is  held  that  the 
owners  of  animals  are  liable  for  in- 
juries done  by  tho  same  to  the  persons 
or  property  of  others,  tho  required 
allegations  and  proofs  varying  in  each 
case:  2  Bla.  Com.,  per  Cooley,  390. 
Owners  of  wild  beasts,  or  beasts  that 
are  in  their  nature  vicious,  are  liable 
under  all,  or  most  all,  circumstances  for 
injuries  done  by  them;  and  in  actions 
for  injuries  by  such  beasts  it  is  not  ne- 
cessary to  allege  that  tho  owner  knew 
them  to  bo  mischievous,  for  ho  is  pre- 
sume 1  to  have  such  knowledge,  from 
which  it  follows  that  he  is  guilty  of 
negligence  in  permitting  the  same  to 
be  at  large.    Though  the  owner  have 
no  particular  notice  that  the  animal 
ever  did  any  such  mischief  before,  yet 
if  the  animal  bo  of  the  class  that  ia 
ferre  nattirw,  the  owner  is  liable  to  an 
action  of  damage  if  it  get  loose  and  do 
harm:   1   Hale  P.   C.  430;  Worth  v. 
Gilling,  L.  R.  2  Com.  P.  3.     Owners 
are  liable  for  the  hurt  done  by  the  ani- 
mal even  without  notice  of  the  propen* 
157 


eitj',  if  the  animal  is  naturally  mis- 
chievous, but  if  it  is  of  a  tamo  nature, 
there  must  bo  notice  of  tho  vicious 
habit:  Mason  v.  Keeling,  12  Mod.  332; 
Rex  V.  Huggins,  2  Ld.  Raym.  1574. 
Damage  may  be  done  by  a  domestic 
animal  kept  for  use  or  convenience; 
but  the  rule  is,  that  the  owner  is  not 
liable  to  an  action  on  the  ground  of 
negligence,  without  proof  that  ho  knew 
that  the  animal  was  accustomed  to 
do  mischief:  Vrooman  v.  Lawyer,  13 
Johns.  339;  Buxendin?).  Sharp,  2Salk. 
6G2;  Cockcrham  v.  Nixon,  11  Ircd. 
2G9.  Domestic  animals,  such  as  oxen 
or  horses,  may  injure  the  perLion  or 
property  of  another,  but  courts  of  jus- 
tice invariably  hold  that  if  they  are 
rightfully  in  the  place  where  the  injury 
is  inflicted,  tho  owner  of  the  animal  in 
not  liable  for  such  an  injury,  unless  ho 
knew  that  tho  animal  was  accustomed 
to  be  vicious;  and  in  suits  for  such 
injuries  such  knowledge  must  be  al- 
leged and  proved,  as  the  cause  of 
action  arises  from  tho  keeping  of  tho 
animal  after  tho  knowledge  of  its  vi- 
cious propensity:  Jackson  v.  Smith- 
son,  15  ^lees.  &  W.  563;  Van  Leuveu 
V.  Lyke,  1  N.  Y.  515;  49  Am.  Dec.  346; 
Card  V.  Case,  5  Com.  B.  632;  Hudson 
V.  Roberts,  6  Ex.  697;  May  ".  Bur- 
dctt,  9  Q.  B.  100;  Dearth  v.  Baker,  22 
Wis.  73;  Cox  v.  Burbridge,  13  Com. 
B.,  N.  S.,  430." 

"Thus  Judge  Cooley  says:  "The 
keeping  of  wild  animals  for  many  pur- 
poses has  come  to  be  recognized  as 
proper  and  useful;  they  are  exhibited 
through  tho  country,  with  the  publio 
license  and  approval;  governments 
and  municipal  corporations  expend 
large  sums  in  obtaining  and  provid- 
ing for  them,  and  the  idea  of  legal 
wrong  in  keeping  them  and  exhibit- 
ing t^co.  is  never  indulged.    It  seems, 


§1384 


ANIMALS. 


5498 


Illustrations. —  A  person  kept  a  monkey  in  a  cage.  The 
monkey  escaped,  and  bit  and  injured  B's  wife.  Held,  that  A 
was  liable,  without  regard  to  the  question  wliether  or  not  ho  had 
been  negligent  in  keeping  and  confining  the  monkey:  May  v. 
Hurdett,  9  Q.  B.  101.  A  deer  is  kept  in  an  inclosurc  in  which 
there  is  a  mineral  spring  resorted  to  by  the  guests  of  a  hotel. 
A  guest  is  attacked  and  injured  by  the  deer.  Held,  that  its 
owner  is  liable,  without  regard  to  whether  he  was  negligent  oi- 
not  in  securing  it:  Coiigress  Spring  Co.  v.  Edgar,  99  U.  S.  G45; 
and  see  Marble  v.  Ross,  124  Mass.  44  (case  of  a  stag).  Defend- 
ants, members  of  an  unincorporated  club,  kept  a  bear  chained 
upon  their  premises,  in  the  city  of  New  Orleans.  A  pastured 
his  ci^ttle  in  a  field  adjoining;  and,  one  day,  while  A  and  his 
hired  boy  were  passing  the  bear,  the  boy  —  not  in  A's  presence, 
however  —  teased  the  bear  by  setting  a  dog  on  him.  Tlio 
bear  slipped  his  collar,  and  attacked  and  wounded  A,  who  died 
of  his  injuries.  Held,  that  defendants  were  liable,  including  a 
defendant  who,  being  away  at  the  time,  knew  nothing  of  tbo 
bear:   Vredenhurg  v.  Behan,  33  La.  Ann.  627. 

§  1384.  Injuries  by  Tame  Animals.  —  Therefore,  a 
tame  animal  which  is,  nevertheless  of  a  fierce  and  savage 
disposition,  stands  in  the  same  position  as  a  wild  animal, 
naturally  ferocious;*  so  the  owner  of  an  ordinary  domes- 
tic animal  keeps  him  at  his  peril  when  ho  learns  or  has 
reason  to  believe  that  he  has  an  inclination  to  bite  or 
attack   individuals.^     "He  is   liable  to  any  person  who, 


therefore,  safe  to  say  that  the  liability 
of  the  owner  or  keeper  for  any  injury 
clone  by  them  to  the  person  or  prop- 
erty of  others  must  rest  on  the  doc- 
trine of  negligence.  A  very  high  de- 
gree of  care  is  demanded  of  those  who 
have  them  in  charge,  but  if,  notwith- 
standing such  care,  they  are  enabled  to 
commit  mischief,  the  case  should  be 
referred  t:  ;he  category  of  accidental 
injuries  for  which  a  civil  action  will 
not  lie":  Cooley  on  Torts,  349.  In  a 
dissenting  opinion  in  Laverone  v. 
Mangianti,  41  Cal.  140,  Crockett,  J., 
while  admitting  the  reasonableness  of 
the  rule  of  the  common  law  when  ap- 
plied to  wild  beasts,  contends  that  it 
should  not  be  applied  to  animals  not 
/ene  nature,  but  still  ferocious;  e.  g., 
a  fierce  and  savage  dog. 

^  Laverone  v.   Mangianti,   41    Cal. 
138;    10   Am.   Rep.  2G9;    Koney   v. 


Ward,  2  Daly,  295;  Stumps  i".  Kelloy, 
22  111.  140;  Kelly  v.  Tilton,  .'i  Kuyes, 
2G3;  Kittredge  v.  Elliott,  10  N.  If.  77; 
41  Am.  Dec.  717;  Earhart  v.  Young- 
blood,  27  Pa.  St.  331;  Rider  c.  Wliitc, 
65  N.  Y.  54;  22  Am.  Rep.  COO;  (loduau 
V.  Blood,  52  Vt.  251;  30  Am.  Rep.  751 ; 
Partlow  r.  Haggarty,  35  Inil.  17S; 
Keightlinger  v.  Eagan,  65  111.  235; 
Muller  V.  McKesson,  73  N.  Y.  195;  29 
Am.  Rep.  123;  Perkins  v.  Mossinan, 
44  N.  J.  L.  579. 

"Smith  V.  Causey,  22  Ala.  5G8; 
Dearth  v.  Baker,  22  Wis.  73;  Earl  c. 
Van  Alstine,  8  Barb.  630;  J'opiilewell 
V.  Pierce,  10  Cush.  509;  Buckley  v. 
Leonard,  4  Denio,  500;  Arnold  v.  Nor- 
ton, 25  Conn.  92;  Fairchild  v.  Bontlcy, 
30  Barb.  147;  Shirley  v.  Bartky,  4 
Sneed,  58;  Meibus  v.  Dodge,  38  Wis. 
300;  20  Am.  Rep.  6;  Lynch  v.  Mc- 
Nally,  73  N.  Y.  347;  MuUer  v,  Mc- 


2498 


2499 


LIABILITIES   OF  OWNERS   OR   KEEPERS. 


1384 


i  cage.    Tho 
Held,  that  A 
)r  not  ho  had 
ikey:  May  v. 
juro  in  which 
ts  of  a  hotel. 
field,  that  its 
I  negligent  or 
99  U.  S.  G45; 
ag).     Defond- 
bear  chained 
.     A  pastured 
lilo  A  and  his 
I  A's  presence, 
3n  him.    The 
3d  A,  who  died 
le,  including  a 
nothing  of  Ibo 

Therefore,  a 
ce  and  savage 
1  wild  animal, 
iinary  domes- 
learns  or  has 
on  to  bite  or 
person  who, 

stumps  V.  Kelley, 
,  Tilton,  3  Kcyos. 
illiott,  10  N.  H.  77; 

Earhart  r.  Youug- 
Jl:  Riilcr  r.  White, 
.Rep.  600;  (ioikau 
.;  30  Am.  Kqi.  751; 
Lrtv,  35  Ind.  178; 
Lan,  05  111.  235; 
fn,  73  N.  Y.  195;  29 
Trkius  V.  Mossinan, 

Ley  22  Ala.  568; 
l2  Wis.  73;  Eavl  r. 
kh.  630;  Purpl'-'well 
li.  509;  Buckley  v. 
BOO;  ArnoM  v.  Nor- 
fairchilil  r.  Bcntlcy, 
lirley  v.  Bartley,  4 
'  V.  Dodge,  38  ^yls. 
G;  Lynch  v.  Mc- 
47;  Muller  v.  Mc- 


without  contributory  negligence  on  his  part,  is  injured 
by  such  animal,  and  he  cannot  exonerate  himself  by 
showing  that  ho  used  care  in  keeping  and  restraining  tho 
animal.  He  takes  tho  risk  of  being  able  to  keep  him 
safely,  so  that  he  shall  not  injure  others.  The  owner's 
negligence  is  in  keeping  tho  animal,  knowing  that  it  is 
dangerous."*  The  declaration  must  aver  tho  scunxlcr? 
A  person  who  keeps  a  dog  which  he  knows  to  bo  savage 
and  ferocious  keeps  him  at  his  peril,  and  is  responsible 
for  any  hurt  he  may  do.^  Without  notice  of  its  mischiev- 
ous inclinations,  the  owner  of  a  domestic  animal  is  not 
liable  for  what  it  does.''    A  dog  kept  on  a  farm  is  presumed 


Kesson,  73  N.  Y.  195;  29  Am,  Rep. 
123;  McCaskill  v.  Elliott,  5  Strob. 
196;  53  Am.  Deo.  706;  Woolf  r.  Chalk- 
cr,  31  Conn.  121;  81  Am.  Doc.  175; 
Wheeler  v.  Brant,  23  Barb.  324; 
Coggswell  V.  Baldwin,  15  Vt.  404;  11 
Am.  Dec.  686.  In  a  New  York  case 
it  is  said  that  where  the  action  is  to  re- 
cover damages  for  injuries  to  plain- 
tiCf'u  dog,  inflicted  by  defendant's  dog, 
whatever  may  have  been  tho  character 
and  habits  of  defendant's  dog,  it  is 
necessary  for  plaintiff  to  prove  that  he 
was  the  aggressor,  or  in  the  wrong  in 
tliat  particular  tight.  If  plaintiff's 
dog  provokeil  tho  quarrel,  and  caused 
tho  light,  defendant,  as  owner  of  the 
other  dog,  cannot  be  made  responsible 
for  the  consequences.  The  cases  in 
which  dogs  have  attacked  human  be- 
ings, although  trespassers,  and  their 
owners  have  been  held  liable,  are  not 
applicable  to  the  case  of  one  dog 
attacking  another:  Wiley  t>.  Slater,  22 
B;irb.  506. 

'  Marble  v.  Ross,  124  Mass.  44. 

-  Murphy  u  Preston,  5  Mackay,  514. 

^  Laverone  v.  Mangianti,  41  Cal. 
138;  10  Am.  Rep.  209;  Hinckley  v. 
Emerson,  4  Cow.  351;  15  Am.  Dec. 
3S3;  Brico  v.  Bauer,  108  N.  Y.  428; 
2  Am.  8t.  Rep.  454.  And  tho  propen- 
sity need  not  have  been  a  propensity 
til  hito  in  anger:  Evans  v.  McDermott, 
4'J  N.  .T.  L.  103;  00  Am.  Rep.  002. 

*  Vroomanv.  Lawyer,  13  Johns.  339; 
Lu  Forest  v.  Tolman,  117  Mass.  109; 
111  Am.  Ro]).  400;  Van  Leuven  v.  Lyke, 
1  N.  Y.  515;  49  Am.  Dec.  346;  Dearth 


V.  Baker,  22  Wis.  73;  Kcrtschacke  v. 
Ludwig,  28  Wis.  430;  Slinger  /-.  Hon- 
noman,  .38  Wis.  504;  Fairchild  v.  Bent- 
loy,  30  Barb.  147;  HincHoy  v.  Emer- 
son, 4  Cow.  .351 ;  Soames  v.  Baruardis- 
ton,  1  Freem.  430;  Durden  v.  Barnett, 
7  Ala.  109;  Earl  v.  Van  Alstino,  8 
Barb.  030;  Snith  v.  Causey,  22  Ala. 
508;  Wormloy  v.  Gregg,  05  111.  251; 
Murray  r.  Young,  12  Bush,  337;  Moss 
V.  Pardridge,  9  III.  App.  490.  In 
Earl  r.  Van  Alstiue,  8  Barb.  0.30,  it 
was  held  that  the  owner  of  hues  in 
hives  near  a  road  which  had  stung  tho 
plaintiff's  horses  while  ho  was  dri\"ing 
past  was  not  liable,  without  proof  of 
notice  to  the  owner,  cither  from  the 
nature  of  the  bees  or  their  previous 
habits,  that  it  was  dangerous  to  keep 
them  where  he  did.  "  Having  shown, 
then,  clearly,"  said  Seldcn,  J.,  "that 
tho  lial.'ility  does  not  depeml  upon  tho 
classification  of  the  animal  doing  the 
injury,  but  upon  its  propensity  to  do 
mischief,  it  remains  to  be  considered 
whether  bees  are  animals  of  so  fero- 
cious a  disposition  that  every  one 
who  keeps  them,  under  any  circum- 
stances, does  so  at  his  peril.  If  it  is 
necessary  for  tlie  plaintiff  to  aver  and 
prove  the  mischievous  nature  of  the 
animal,  nothing  of  the  kind  was  done 
in  this  case;  but  if  courts  are  to  tako 
judicial  notice  of  the  nature  of  things 
so  familiar  to  man  as  bees,  wliich  I 
suppose  they  would  be  justified  in 
doing,  then  I  would  observe  that, 
however  it  may  have  been  anciently, 
in  modern  days  the  bee  has  become 


§  13S4 


ANIMALS. 


2500 


not  to  bo  vicious  or  to  havo  clangorous  habits,  and  tlio 
owner  or  luirboror  is  not  liable  for  his  vicious  acts,  unless 
ho  hud  knowledge  of  them.' 

Ilm'strations.  —  A  was  riding  in  a  buRgy  past  B'b  house,  in 
tlio  highway,  lending  two  colts  by  halter  behind  the  buggy.  A 
third  colt  was  following  loose  behind  them.  The  colts  wero  two 
yojir.s  ohl,  had  been  halter-broken,  and  wore  gentle.  B'h  tlo<T 
eanie  running  out  into  the  highway,  and  barked  and  attacked 
the  colts,  frightening  them,  and  causing  them  to  jump  agiiinst 
the  buggy,  one  of  them  jumping  upon  A  and  throwing  him  out 
of  and  under  the  Iniggy,  and  seriously  injuring  him.  Held, 
that  li  was  liable  if  ho  know,  or  had  cause  to  believe,  that  liig 
(log  was  vicious,  and  in  the  habit  of  attacking  teams  or  puss- 
crsby  in  the  highway:  Knowlcs  v.  Mulder,  Mich.,  1889.  In  an 
ai'tion  against  che  owner  of  a  dog,  who  had  bitten  plaintiff,  the 
evidence  failed  to  show  that  the  dog  had  ever  before  bitten  or 
threatened  to  bite  any  one.  The  testimony  was,  that  the  dog 
was  a  setter,  and  of  kind  disposition,  and  not  given  to  bito, 
either  in  malice  or  mischief,  and  had  never  been  complained  of 
by  any  person;  and  that  ho  was  played  with,  harnessed,  and 
ridden  by  children.  IIcUJ,  that  defendant  was  not  liable:  Starf- 
ter  V.  Mc Arthur,  o3  Mo.  App.  218.  A's  dog  runs  into  R's  yard 
and  kills  B's  dog.  Held,  that  A  is  not  liable  for  the  damage 
resulting  from  the  death  of  the  dog:  Buck  v.  Moore,  35  Huii, 
338.    A  declaration  avers  that  A  kept  a  horse  wliich  he  knew 


almost  aa  completely  domesticated  as 
liie  ox  or  tlio  cow.  Its  habits  and  its  in- 
stincts havo  been  studies,  and  through 
the  knowledge  thus  acquired  it  can 
bo  controlled  and  managed  with  nearly 
as  much  certainty  as  any  of  tlu  do- 
mestic animals;  and  aL-liough  it  may 
be  proper  still  to  class  it  among  those 
j'uixe  natttne,  it  must,  nevertheless,  bo 
regarded  as  coming  very  near  the  di- 
viding line;  and,  in  regard  to  its  pro- 
pensity to  mischief,  I  ai^prehend  such 
a  thing  as  a  serious  injury  to  persons 
or  property  from  its  attacks  is  very 
rare,  not  occurring  in  a  ratio  more 
frequent,  certainly,  than  injuries  aris- 
ing from  the  kick  of  a  horse  or  tho  bite 
of  a  dog.  There  is  one  rule  to  bo  ex- 
tracted from  tho  authorities  to  whicli 
I  have  referred,  not  yet  noticed,  and 
that  is,  that  the  law  looks  with  more 
favor  ui)ou  tho  keeping  of  animals  that 
are  useful  to  man  than  such  as  are 
purely  noxious  and  useless.  And  tho 
keeping  of  the  one,  although  in  some 


rare  instances  it  may  do  injury,  will 
bo  tolerated  and  encouraged,  wlillo 
there  is  nothing  to  excuse  the  koupia^' 
of  the  other.  In  tho  case  of  Vrooma;! 
V.  Lawyer,  13  Johns.  339,  tlie  coiiit 
say:  'If  damages  bo  done  by  any  do- 
mestic animal  kept  for  use  or  couvu- 
niciico,  tho  owner  is  not  liable  to  an 
action  without  notice.'  The  utility  of 
bees  no  ono  will  question,  and  iienoo 
there  is  nothing  to  call  for  tho  aiipli- 
cation  of  a  very  stringent  ml'  I 
case.     Upon  the   v '  rdc.     iierefon,  i 


am   clearly   of    t'l 
owner  of    bees 
events,  for  any  : 
may  do."    And 


1  that  thu 
iialjle,  at  all 
atal  injury  tin 
■r  tho  ^^assacllu- 


setts  statute  rendcim^  tho  ■  \\  uer  of  a 
dog  "  liable  to  any  person  njured  by 
it,"  it  is  immaterial  whether  tlio  injury 
was  by  biting  or  jumping  on  plaintitf, 
or  whether  in  play  or  with  vicious 
intent:  Hathaway  v.  Tinkham,  143 
JMass.  83. 
»  Shaw  V.  Craft,  37  Fed.  Rep.  317. 


■BR 


2500 


I,  and  tho 
cts,  uulosd 


I's  liouBo,  in 
buggy.    A 
Us  woro  two 
e.     B'»  doji; 
id  attacked 
imp  against 
ing  bim  out 
bim.     Held, 
svo,  tbat  Ills 
anis  or  pass- 
[889.     In  an 
plaintiff,  tho 
OTQ  bitten  or 
that  tbo  doc; 
iven  to  bite, 
^mplaincd  of 
irncsscd,  and 
liable:  Staet- 
into  B's  yard 
tbe  damage 
iorc,  35  Ilun, 
lich  be  know 

do  injury,  will 
couragud,   Avliilo 
;uso  tlio  keei)iug 
case  of  VroDmaii 
339,  tho  court 
dono  by  any  do- 
or 1130  or  couvf 
not  liablo  to  an 
Tho  utility  of 
jtion,  ami  henco 
11  for  tlu!  appli- 
tent  'ul'!  t     t'"' 
)lo.      lerefon-,  I 
1  that  tho 
lialile,  at  all 
ital  injury  the. 
the  Massacliu- 
tho  ■  vMicr  of  a 
rson    njured  l)y 
lether  tho  injury 
Ding  on  plaintiff, 
or  with  vicious 
Tiokham,   143 

Fed.  Rep.  317. 


2501 


LIADILITIES   OP  OWNERS   OR   KEEPERS.  §  13S5 


was  accustomed  to  bito  mankind,  wbicb  bit  and  injured  B. 
Jlcid,  tbat  an  averment  was  not  necessary  that  llio  injury  was 
received  through  A's  negligence  in  keeping  tho  borHo:  rap- 
2)lcwdl  V.  Pierce,  10  Cush.  609.  B's  raco-horso,  in  cliargo  of 
tho  servant  of  a  man  in  whose  charge  B  had  placed  tlio  horse, 
ran  away,  and  came  into  collision  with  A's  horse.  Hell, 
that  as  A's  allegations  of  tho  vicious  and  mischievous  i)ropen- 
nities  of  B's  horse  were  not  proven,  plaintiff  could  not  recover: 
JicJl  V.  Leslie,  24  Mo.  App.  GOl.  I'laintifl",  while  walking  in 
tho  street  in  front  of  tho  defendant's  house,  on  a  dark  night, 
was  bitten  by  the  defendant's  dog,  lying  there  unmuzzled. 
There  was  an  ordinance  prohibiting  the  running  of  unmuz- 
zled dogs  at  largo  in  the  street.  Held,  that  tho  defendant 
was  not  liablo  without  proof  of  tho  scienter:  Smith  v.  Ihno- 
hue,  49  N.  J.  L.  548;  GO  Am.  Rep.  652.  A  induced  B  to  assist 
him  in  hitching  bis  horso  to  a  wagon  by  falsely  stating  that 
the  horso  was  gentle.  The  court  charged  that  if  A  repro- 
sentod  tho  horso  to  be  gentle,  and  thus  induced  B  to  take 
hold  of  him,  and  if  the  horso  was  not  gentle,  and  if  B  was 
injured  without  negligence  on  bis  part,  then  A  was  respon- 
sible for  tho  injuries  sustained  by  tho  vice  of  tho  hor.se. 
Held,  error,  in  making  A  liablo  without  reference  to  his  knowl- 
edge of  the  viciousnoss  of  the  horse,  or  to  the  intent  with  which 
tho  representation  was  made,  and  also  as  assuming  that  the 
horso  was  vicious:  Finney  v.  Curtis,  78  Cal.  498. 

§  1385.  Proof  of  Scienter.  —  Knowledge  by  the  owner 
of  the  fierce  or  mischievous  disposition  of  a  domestic 
animal,  or  one  ordinarily  harmless,  is  proved  by  showing 
one  or  more  previous  instances  of  tho  animal  attacking 
men  or  animals  which  the  owner  bad  notice  of.'     But  the 


'  Loomisr.  Terry,  17  Wend.  490;  31 
Am.  Doc.  300;  Woolf  v.  Chalkor,  31 
Conn.  131;  81  Am.  Dec.  175;  Arnold?'. 
Norton,  25  Conn.  92;  Kittridgo  v.  El- 
liott, 10  N.  H.  77;  41  Am.  Dec.  717; 
liuckloy  V.  Leonard,  4  Denio,  500; 
Coggswell  %\  Baldwin,  15  Vt.  404;  11 
Am.  Doc.  080;  Pickerings.  Orange,  2 
111.  492;  32  Am.  Doc.  35;  Cockerhamw. 
Nixon,  1 1  Ired.  209;  Wheeler  v.  Brant, 
23  Barb.  324;  Sarch  v.  Blackburn,  4 
Car.  &  P.  297.  Proof  of  a  subsequent 
instance  will  not  do:  Thomas  r.  Mor- 
gan, 5  Tyrw.  1085;  Fairchild  v. 
Bjntloy,  30  Barb.  147;  Cooke  v.  War- 
in-,  2  Hurl.  &  C.  332.  In  Mann  v. 
Wciaud,  Sli  Pa.  St.  243,  the  owner  of 


a  dog  was  sued  for  an  injury  to  an- 
other's horses.  "To  fasten  a  liability 
on  him,"  said  tho  court,  "it  was 
necessary  to  establish  the  vicious  char- 
acter of  his  dogs,  and  his  previous 
knowledge  of  that  character.  To 
prove  tho  former,  tho  defendant  in 
error  gave  evidence  of  the  conduct  of 
tho  dogs  on  two  occasions.  At  one 
time,  as  a  team  was  passing  along  on 
tho  public  highway,  the  dogtj,  without 
leaving  the  inclosure  of  their  master, 
jumped  against  the  bars  of  the  fence 
at  the  roadside  with  such  force  and 
violence,  and  rattled  them  to  such  an 
extent  as  to  frighten  the  horses,  thoi'c- 
by  causing  tliem  to  spring,  break  the 


§  1385 


AITIMALS. 


2502 


owner  neei  not  know  that  the  animal  bites  or  attacks 
people;  it  is  enough   that   he  knows  that  it  is  savage' 


doubletree,  and  run  for  several  roda. 
The  other  act  was  of  a  more  vicious 
character.     As  a  team    was  passing 
the  premises  of  the  plaintiff  in  error, 
his  dogn  ran  out  into  the  road;  one  of 
them   barked   and   jumped  ahead   of 
the  horcse  so  as  to  stop  it;  the  other 
raised  himself  up,  put  his  paws   on 
the  wagou,  barked  and  growled,  and 
seized  the  shawl  of  a  small  girl,  who 
sat   on    the    back  seat;  on  its  being 
"ierked  loose  from  him,  he  got  down, 
but  both  dogs,  growling,  followed  the 
team  ■iome  three  or  four  hundred  rods. 
There  was  evidence  that  the  plaintiff 
in  error  had  notice,  before  the  injury 
iu   this   case,    of  the  conduct  of   the 
dogs  on  both  these  occasions.     Wore 
i.'..ese  facts  sufficient  to  submit  to  the 
jury  to  tiad  the   dogs  to  be  vicious 
and  accustomed  to  attack  and  f  ricjhien 
horses?    In  Smith  v.  Pelah,  2  Strange, 
1204,  it  was  said  by  Lee,  C.  J.:  'If  a 
dog  has  once  bit  a  man,  and  the  owner, 
having  notice  thereof,  keep;;  the  dog 
and  lets  him  go  about,  or  lie  at  his 
door,  an  action  will  lie  against  him  at 
the  suit   of    the  person  who  is  bit, 
though   it  happened  by  such  person 
treading  on  the  dog's  toes;  for  it  was 
owing  to  his  not  hanging  the  dog  on 
the  first  notice,  and  the  safety  of  the 
king's  subjects  ought  not  afterward 
to  bo  endangered.'    So  in  Arnold  v. 
Norton,  25  Conn.  92,  it  was  held  that 
full  and  satisfactory  proof  of  a  single 
instance  in  which  the  dog  had  previ- 
ously bitten  a  human  being,  an  .    ,>f 
the  owner's  knowledge  thereo*',    rt'as 
suilicient,  but  that  the  force  of  such 
testimony  would    depend    mur'h    on 
the   surrounding    circumstances.     In 
Kittridge    v.    Elliott,    IG   N.  H.  77, 
41    Am.  Dec.  717,  evidence  of  notice 
<.)f  0110  attack  by  a  dog  was  held  suffi- 
cient to  charge  the  owner  with  all  its 
subsef[uent  acts.     In  Loomis  v.  Terry, 
17  Wend.  4S»>,  31  Am.  Dec.  30G,  one 
instance  S3ems  to  have  been  consid- 
ered sufficient.     Ona  attempt  of  a  bull 
to  goro  was  held  sufficient  in  Oock- 
eriiam  v.   Nixon,  11  Ired.  2G9.     We 
think  one  instance   may  show  such 
unmistakable    evidence  of   a  vicious 
propensity  as  to  make  the   owner  of 
the  dog,  with  notice,   liable  for  any 


subsequent  act  of  a  similar  character. " 
In  an  action  against  the  owner  of  a 
vicious  dog  to  iv,cover  for  injuries  to 
the  plaintiff's  team  runni'ig  away  iu 
consequence  of  an  att' ck  by  the  dog 
in  the  street,  the  noientt "  must  bo  al- 
leged and  proved,  and  it  shouW  clearly 
appear  that  the  onset  of  the  doj,',  and 
not  any  vicious  habit  of  the  h()rs(3, 
was  the  cause  of  the  runaway: 
Wormley  v.  Gregg,  05  111.  251.  A 
dog  may  be  found  to  have  attacked  a 
horse  upon  a  highway,  although  tlio 
dog  did  not  leave  his  master's  prom- 
ises, nor  go  within  fifteen  feet  of  the 
horse,  nor  bark  or  make  any  noise: 
Denison  v.  Lincoln,  131  Mass.  230. 

'  Sinison  v.  London  Omnihns   Co., 
L.  R.  8  Com.  P.  390;  Hudson  r.  Rob- 
erts, 0  Ex.  097;  Partlow  v.  Haggarty, 
35  Ind.  170;  Laverone  v.  Manojaiiti, 
41  Cal.  138;  10  Am.  Rep.  209;  Worth 
V.  Gdliug,  L.  R.  2  Com.  P.  1 ;  Flans- 
burg  V.    Basin,    3  111.  App.    531 ;   or 
that  it  is  dangerous,  in  that  it  lias 
been  bitten  by  a  mad  dog:  Jouos  r. 
Perry,  2  Esp.  482.     In  Rider  v.  Wliite, 
05  N.  Y.  54,  22  Am.  Rep.  000,  it  is 
said:     "There  was  evidence  tuuding 
to  prove  that  the  dogs  were  vicious. 
One  of  them  was  kept  chained  a  por- 
tion of  the  time;  one  of  the  dufoud- 
ants  warned   a  party  to   bewaro  of 
them,  saying  one  of  them    was  very 
ugly.     It  was  shown  that  they  r.iii 
out  furiously  at  passers-by,  indicating 
a  disposition  to  inflict  an  injury  upon 
them,  and  were  occasionally  called  in 
by  persons  in  the  defendant's  employ. 
This,  considered  with  other  evidence 
in  the  case,  tended  to  show  that  their 
vice  was  known  to  the  defendants, 
who  had  caused  a  sign  to  be  erected 
on  theic  premises,  not  in  sight  of  tiic 
place  where  the  plaintiff  was  passing, 
inscribed,      'Beware  of    dogs ';     anil 
the  other  defendant,  when  apprised  of 
the  injury  inflicted  by  them  upon  tlio 
plaintiff,  after  expressing  his  regret, 
said,    '  They  were  large  dogs,  and  he 
must    have     had    a    serious    time.' 
Whether  the  dogs  were  vicious  to  an 
extent  that  e'ulaugered  life  or  linil), 
and  were  prone  to  attack   persons, 
and  that  the  defendants  had  kn;)\vl- 
edge  of  that  propensity,  were  questions 


2502 


250' 


LIABILITIES    OP   OWNERS   OR   KEEPERS. 


1385 


3S  or  attacks 

t  is  savage.' 

milar  character. " 
the  owner  of  a 
r  for  injuries  to 
ruiiiii'12  away  iu 
t>ck  by  the  dog 
ink"  must  bo  al- 
i  it  shouW  clearly 
;  of  the  dog,  and 
lit   of  the   horse, 
t    the    runaway; 
G5  IU.   2ol.     A 
)  have  attacked  a 
ay,  althougli  the 
is  master's  prciu- 
fteen  feet  of  tho 
make   any  noisu: 
131  Mass.  230. 
m   Omnibus   Co., 
;  Hudson  V.  r>( lb- 
low  V.  Haggarty, 
me   V.  Mangiauti, 
Rep.  209;  Worth 
uom.  P.  1;  Blaus- 
dl.  App.    531;   or 
3,  in   that  it  has 
lad  dog:  Jou(Js  v. 
[u  Rider  v.  White, 
J.  Rep.  000,  it  is 
evidence  tending 
logs  were  vicious. 
spt  chained  a  por- 
.6   of  the  defoiul- 
■ty  to    beware  of 
|f  them    was  very 
n  that  they  r.ui 
[ers-by,  indicating 
jt  an  injury  upon 
.sionally  called  iu 
Ifendant'a  emyloy. 
;h  other  evidence 
,0  show  that  their 
the  defendants, 
ign  to  be  erected 
it  in  sight  of  tiic 
[ntiff  wiis  passing, 
of    dogs';     and 
when  apprised  of 
•y  them  upon  the 
jssing  his  regret, 
rge  dog3,  and  he 
serious    time. 
ere  vicious  to  au 
!red  life  or  Uml), 
attack   per.-iou.s, 
ants  had  kiuiwl- 
[ty,  were  questions 


"The  formula  used  in  text-books  and  in  forms  given  for 
pleadingsin  such  cases  'accustomed  to  bite'  does  not  moan 
that  tho  keeper  of  a  ferocious  dog  is  exempt  from  all  duty 
of  restraint  until  the  dog  has  effectually  mangled  or  killed 
at  least  one  person.  But  as  he  is  held  to  be  a  man  of 
common  vigilance  and  care,  if  he  had  good  reason  to  be- 
lieve from  his  knowledge  of  the  ferocious  nature  and  pro- 
pensity of  the  dog  that  there  was  ground  to  apprehend 
that  he  would  under  some  circumstances  bite  a  person, 
then  the  duty  of  restraint  attached,  and  to  omit  it  was 
negligence."  * 

In  an  action  against  the  owner  of  a  dog  f'.r  biting  a 
man,  proof  that  the  owner  knew  that  he  had  a  propensity 
to  bite  animals  is  not  enough;^  nor  that  he  might  have 
known  the  dog's  vicious  disposition  with  reasonable  care;^ 
nor  that  the  dog  had  a  propensity  to  chase  trespassing 
cattle  from  his  master's  grounds.^  But  it  is  enough  that 
he  had  destroyed  animals  of  another  species,"*  or  had  at- 
tacked a  man.*  Proof  that  the  defendant  had  warned  a 
person  to  beware  of  tho  dog,  lest  he  should  be  bitten,  is 
evidence  to  go  to  a  jury  of  the  scienter.'^  Where  the  owner 
knows  his  dog  has  bitten  people,  it  is  no  defense  that  he 
was  generally  inoffensive.®    If  a  dog  is  kept  for  protection 

fairly  raised  by  tho  evidence,  and  like  circumstances,  occur.  The  law 
were  properly  submitted  to  '■he  jury,  has  gone  far  to  shield  those  who  have 
But  it  is,  in  substance,  insisi  )d  that  kept  dogs  for  the  protection  of  their 
even  though  tho  plaintiff  was  not  property  from  the  cou.seipicuces  of 
intentionally  a  wrong-doer  by  being  injuries  to  persons  indicted  by  them, 
upon  the  clefcndants  premises,  and  but  not  so  far  as  to  protect  tho  keep- 
that  they  were  aware  that  their  dogs  ers  of  such  as  are  known   to  them  to 


had  such  vicious  proiiensity,  they, 
nevertheless,  are  not  liable  for  the 
injury  indicted,  for  tho  reason  that  it 
was  not  sliown  that  either  of  tho  dogs 
had  ever  before  that  time  bitten  any 
one;  iu  other  words,  that  however 
much  the  life  or  limb  of  innocent 
persons  might,  to  the  knowledge  of 
the  defendants,  have  been  exposed  to 
danger  by  the  vicious  propensity  of 
their  dogs,  they  are  not  liable  for  this, 
being  the  first  injury  inHicted,  not- 
withstanding they  had  just  reason  to 
believe  that  such  injury  would,  under 


bo  ferocious  to  a  degree  that  endan- 
gers the  safety  of  such  as  are  unwarned, 
and  innocently  upon  their  promises, 
from  the  consequences  of  wounds  in- 
flicted by  them. '^ 

iGodeau  v.  Blood,  52  Vt.  251;  30 
Am.  Rep.  751. 

'•'  Keightlinger  r.  Egan,  05  111.  235. 

"Lahe^ty  v.  Hogan,  13  D.dy,  533. 

*  Spray  r.  Aiiunerman,  00  111.  309. 

*  Pickering  v.  Orange,  2  111.  333. 
^Coekerham  r.  Nixou,  11  Ircd.  209. 
'  Judge  V.  Cox,  1  Stark.  2S5. 

*  Buckley  v.  Leonard,  4  Douio,  500. 


§ 


1385 


ANIMALS. 


2504 


to  ijrcmises,  the  purpose  for  which  he  is  kept  charges  his 
master  with  knowledge  that  ho  is  of  fierce  and  dangerous 
character.^  In  an  English  case  't  is  said  that  in  an  ac- 
tion for  knowingly  keeping  a  fierce  and  mischievous  dog, 
which  had  hitten  or  wounded  the  plaintiff,  it  is  necessary 
to  prove  that  he  has  injured  the  plaintiff,  and  is  used  to 
injuring  people,  and  a  mere  habit  of  bounding  upon  and 
seizing  persons,  not  so  as  to  hurt  or  injure  them,  thougli 
causing  some  annoyance  and  trivial  accidental  damage 
to  clothes,  would  not  sustain  the  action;  and  the  dog  may 
be  brought  into  court,  and  shown  to  the  jury  to  assist 
them  in  judging  of  his  temper  and  disposition.^  Knowl- 
edge of  an  agent  or  servant  of  the  vicious  quality  of  an 
animal  is  the  knowledge  of  the  owner,  and  binds  him,* 
provided  the  agent  is  one  whose  duty,  in  the  course  of  his 
employment,  is  to  receive  such  knowledge  and  commuui- 
cate  it  to  his  principal.'* 

Illustrations. — A  had  large  watch-dogs  which  he  kept  cliai  ikmI 
during  the  Jay,  and  loose  at  night.  B,  while  passing  along  the 
Htrect  at  night,  was  attacked  and  bitten  by  them.  Ilrhl,  tliat 
farther  proof  of  scicnfer  was  not  necessary:  Montgmnrnj  v. 
Koester,  35  La.  Ann.  1091;  48  Am.  Rep.  253.  Defendant  Mas 
accustomed  personally  to  tie  his  watch-dogs  by  day,  and  loose 
them  at  night.  Having  overslept  one  morning,  and  neglected 
to  tie  the  dogs,  they  l)it  the  plaintiff,  who  came  lawfully  on  the 
premises  by  the  invitation  of  defendant's  daughter.  Held,  that 
defendant's  knowledge  of  the  dangerous  cliaracter  of  tin;  dogs 
might  he  inferred  from  his  habit  of  tying  them  by  day,  hut  not 
from  his  wife's  asking  the  daughter  why  she  had  not  tied  thoiii: 
Goode  V.  Martin,  57  Md.  606;  40  Am.  Rep.  448.  Plaintiif, 
whilst  walking  along  the  public  street,  wearing  a  red  handker- 
chief, was  attacked  and  injured  by  a  bull,  which  was  lieing 
driven  along  the  street.  The  defendant  stated  after  the  acci- 
dent that  the  red  handkerchief  was  the  cause  of  the  injury, 
for  he  knew  tiie  bull  would   run  at  anything  red.     He   also 


•  Briec  v.  Bauer,  108  N.  Y.  428;  2 
Am.  St.  Rep.  -154. 

^Liiio  V.  Taylor,  3  Fost.  &  F.  731. 

••BiMwiu  V.  Casella,  L.  R.  7  Ex. 
325;  CUiJman  v.  Johnson,  '.]6  L.  J. 
Com.  P.  l.");J;  Miller  r.  Kimbray,  10 
L.  1'.,  N.  S.,  300;  Applubee  v.  Percy, 


L.  R.  9  Com.  P.  047;  Corliss  v.  Hniith, 
53  Vt.  532.  And  see  Jeffrey  v.  Wv^q- 
low,  13  Weud.  518;  28  Am.  Dee. 
476. 

*  Stiles  V.  Cardiff  Steam  Xav.  Co., 
33  L.  J.  Q.  B.  310;  Twigg  v.  llylaml 
62  Md.  380;  50  Am.  Rep.  2-2S. 


2505 


LIABILITIES   OP   OWNERS   OR   KEEPERS. 


1386 


on.^     Kiiowl- 


Btated  on  another  occasion  that  he  knew  that  a  bull  would  run 
at  anything  red.     Held,  that  this  was  e\ndence  for  the  jury  in 
Bupport  of  the  averment  of  the  scienter:  Ilinlson  v.  Rolierts,  6 
Ex.  679;  20  I,.  J.  Ex.  299.     Defendant's  dog  was  under  his 
wagon  in  the  shed  of  an  inn,  where  tlie  defendant  was  a  guest, 
and  bit  the  plaintiff,  the  innkeeper,  while  ho  was  unhitching 
the  horses  to  move  them.     Held,  that  whether  the  dog  was  or 
was  not,  quoad  the  master  who  had  tried  to  send  him  home,  an 
involuntary  trespasser,  the  defendant  was  not  liable  unless  ho 
knew  that  the  dog  was  of  vicious  character,  and  that  such 
knowledge  could  not  be  inferred  from  the  subsequent  conduct 
of  the  dog:  Fairchild  v.  Bentley,  30  Barb.  147.    To  establish  the 
scienter,  it  was  proved  that  the  wife  of  the  defendant  (who  was 
a  milkman)  occasionally  attended  to  his  business,  which  was 
carried  on  upon  premises  where  he  kei)t  the  dog,  and  that  a 
person  had  gone  there  and  made  a  formal  complaint  to  the 
wife,  for  the  purpose  of  its  being  communicated  to  her  husband, 
of  the  dog  having  bitten  such  person's  nephew.     Held,  that 
there  was  evidence  of  the  husband's  knowledge  of  the  dog's  pro- 
pensity to  bite:  Gladman  v.  Johnson,  36  L.  J.  Com.  P.  153;  15 
Week.  Rep.  313;  15  L.  T.,  N.  S.,  476.     To  fix  a  defendant  with 
knowledge  of  the  ferocious  nature  of  a  dog  of  which  he  was  the 
owner,  and  which  had  bitten  the  plaintiff,  two  persons  who  had 
upon  previous  occasions  (one  of  them  twice)  been  attacked  by 
it  were  called  to  prove  that  they  had  gone  to  the  defendant's 
public  house  and  made  complaint  to  two  persons  who  were  be- 
Innd  the  bar  serving  customers,  and  that  one  of  them  had  also 
complained  to  the  barmaid.     There  was,  liowever,  no  evidence 
that  these  complaints  were  communicated  to  the  defenuant;  nor 
was  it  shown  that  either  of  the  two  men  spoken  to  had  the 
general  management  of  the  defendant's  business  or  had  the  care 
of  the  dog.     Held,  that  there  was  evidence  of  scienter  to  go  to 
the  jury:  Applebee  v.  Percy,  L.  R.  9  Com.  P.  647;  22  Week.  Rep. 
704. 

§  1386.  Liability  Enlarged  by  Statute. — In  some  states 
statutes  have  been  passed^  enlarging  the  common-law  lia- 
bility of  the  owners  of  dogs,  and  rendering  it  no  longer 
necessary  to  prove  that  the  owner  knew  of  the  dangerous 
habits  of  his  dog;''  also,  giving  double  damages  for  such 


Steam  X:lv.  Cd., 
?\vigg  V.  llylaud. 


'  Massachusetts:  Rev.  Stats.,  c. 
58,  sec.  13;  New  Hampshire  statute; 
reimsylvania  statute;  Michigan  stat- 
ute; Ohio  statute;  New  York:  1  Rev. 
Stats.,  p.  CJ6,  sec.  9;  usually  in  actions 
for  the  killing  of  sheep  by  dogs. 


'•i  See  Presseyi'.  Wirth,  3  Allen,  191; 
Orno  V.  Roberts,  51  N.  H.  110;  Wool! 
?..Chalker,  31Conn.  121;  81  Am.  Dec. 
175;  Fish  *•.  Skut,  21  Barb.  333;  Osin- 
cup  V.  Nichols,  49  Barb.  145;  Kerr  v. 
O'Connor,  63  Pa.  St.  341;  Swift  v.  Ap- 


§1387 


ANIMAXS. 


2506 


injuries.'  The  New  York  statute  making  the  owner  of  a 
dog  which  shall  "kill"  or  "wound"  a  sheep  liable,  with- 
out notice  that  he  was  mischievous,  has  no  application 
where  the  sheep  were  only  chased  and  worried.  In  that 
case  there  must  be  proof  of  the  scienter  to  render  tbo 
owner  liable.^  The  remedy  given  by  the  Massacliusetts 
statute  to  "any  person  injured"  by  a  dog  against  its  owner 
or  keeper  includes  injuries  to  property.'  The  owner  or 
keeper  of  a  dog  is  liable  under  the  statute  of  Wisconsin 
for  injuries  to  the  clothes  of  one  bitten,  as  well  as  for  in- 
juries to  his  person,  although  knowledge  of  the  mischiev- 
ous disposition  of  the  dog  is  not  proved  to  have  been  had 
by  the  owner.  The  language  of  the  statute,  being  general, 
is  not  to  be  limited  to  injuries  to  the  party  only.*  Evi- 
den.ce  of  the  owner's  knowledge  of  the  dog's  character  and 
previous  attacks  is  competent  in  aggravation  of  damages, 
even  under  a  statute  which  does  not  make  the  liability 
dependent  upon  such  knowledge.^  The  New  Hampshire 
act  entitled,  "An  act  in  relation  to  damages  occasioned  by 
dogs,"  is  unconstitutional  so  far  as  it  undertakes  to  charge 
the  owner  with  the  amount  of  damage  done  by  his  dog, 
as  fixed  by  the  selectmen  of  the  town,  without  an  oppor- 
tunity to  bo  heard,  on  the  ground,  among  others,  that  it 
is  in  violation  of  the  right  of  trial  by  jury." 

§  1387.  Contributory  Negligence — Children.  —  Con- 
tributory negligence  in  such  cases,  as  in  all  other  actions 
for  personal  injuries,  is  a  bar.'     But  to  show  this,  it  must 


pleboae,  2'^  Mich.  252;  Griea  v.  Zeck, 
2i  Oluo  St.  329.  Such  statutes  are 
constitutional;  East  Kingston  6".  Towle, 
4S  N.  H.  57;  97  Am.  Dec.  575. 

-  Mitchell  V.  Clapp,  12  Cush.  278; 
Smith  r.  Causey,  22  Ala.  568.  Under 
the  Michigan  statute,  double  damages 
are  recoverable  for  the  killing  of  sheep 
}>y  a  dog,  even  if  the  owner  is  igno- 
rant of  his  vicious  nature:  Trompen  v. 
Verhage,  54  Mich.  304. 

■^  Auchmuty  v.  Ham,  1  Denio,  495. 

'  Brewer  i-.  Crosby,  11  Gray,  29. 


*  Schaller  v.  Connors,  57  Wis.  321. 

^  Swift  V.  Appleboue,  23  iMicii.  252. 

8  East  Kingston  v.  Towle,  48  N.  H. 
57;  97  Am.  Dec.  575. 

'  Marble  v.  Ross,  124  Mass.  14; 
Earhart  v.  Youngblood,  27  Va.  St. 
331;  Fanning  v,  Hagadom.  i)  Week. 
Dig.  N.  Y.  36;  Williams  v.  Moray, 
74  Ind.  25:  39  Am.  Rep.  76;  Ehurliart 
V.  Reister,  96  Ind.  478,  holdini,'  that 
the  complaint  must  allege  that  tiie 
plaintiff  was  not  negligent.  An  action 
cannot    be    maiutaiued   for  dauiagca 


2507 


LUBILITIES   OP  OWNERS  OR   KEEPERS. 


§1387 


be  established  that  the  person  injured  did  some  act  from 
which  it  maybe  inferred  that  he  brought  the  injury  upon 
himself.  If  a  person  should  thrust  his  arm  into  a  bear's 
mouth  and  be  bitten,  it  could  not  be  said  that  the  injury 
was  caused  by  keeping  the  bear;  and  so  if  a  person, 
knowing  the  vicious  propensities  of  a  dog,  should  wan- 
tonly or  willfully  do  an  act  to  induce  the  dog  to  bite,  or 
should  unnecessarily  or  voluntarily  put  himself  in  the 
way  of  the  dog,  knowing  the  probable  consequences,  the 
same  principles  would  apply.*  If  a  person  provoke  a 
dog  to  bite  him,  he  cannot  recover.'^  But  ordinary  famili- 
arities with  a  dog  loose  are  not  contributory  negligence 
within  this  rule.  **  Tliey  are  not  acts  from  which  any 
bad  consequences  would  naturally  follow;  certainly  not 
from  a  peaceful  dog,  which  it  may  be  presumed  every  dog 
at  large  is."*  In  an  action  for  an  injury  by  a  vicious 
bull,  the  plaintiff  recovered,  although  it  appeared  that 
the  bull  was  attracted  by  a  cow  in  a  particular  state, 
which  the  plaintiff  was  driving  past  the  field  in  which 
the  bull  was,  and  that  the  plaintiff  first  struck  the  bull 
on  the  head  to  drive  him  away  from  the  cow,*  The 
plaintiff  may  recover,  notwithstanding  he  had  on  a  pre- 
vious day  been  warned  against  going  near  the  dog,  if  the 
jury  think  that  the  accident  was  not  occasioned  by  the 
plaintiff's  own  carelessness  and  want  of  caution.^  The 
owner  is  not  excused  in  such  case,  although  the  person 
committed  a  technical  trespass  in  entering  the  premises, 
and  although  he  has  kept  the  dog  within  an  inclosure, 


caused  by  the  escape  of  a  hull  from 
his  pasture,  if  the  feuce  was  reasou- 
ably  secure,  especially  when  the  bull's 
escape  was  chiefly  or  wlioUy  owing 
to  the  fault  of  the  owner  of  the  prop- 
erty injured,  or  his  agent:  Weide  v. 
Thiel.  9  111.  App.  223. 

'  Lynch  V.  McNally,  73  N.  Y.  347; 
Muller  V.  McKesson,  73  N.  Y.  195; 
2'J  Am.  Rep.  123;  Sheehan  v.  Corn- 
wall, 29  Iowa,  99.     Accidentally  .step- 


ping on  a  dog's  toes  is  not  contributory 
negligence:  Sinitii  v.  Pclaii,  2  Strange, 
12(54;  Woolf  v.  Chalker,  31  Conn.  121; 
81  Am.  Dec.  175. 

■^  Keightlinger  v.  Egan,  05  111.  235; 
Quind)y  v.  Woodbury,  1)3  N.  H.  370. 

»  Lynch?'.  McNally,  73  N,  Y.  347. 

■•  lilackman  v.  Simmons,  3  Car.  &  P. 
138. 

^Curtis  V.  Mills,  5  Car.  &  P.  489. 


§  1387 


ANIMALS. 


2508 


and  placed,  as  a  notice,  upon  the  outside  of  his  premises 
"  Beware  of  the  dog."  But  otherwise,  if  the  person's  at- 
tention was  drawn  to  the  notice,  and  he  was  cautioned 
not  to  cross  the  fence,  yet  voluntarily  exposed  himself  to 
the  danger.^  If  the  act  of  a  dog  is  the  solo  and  prox- 
imate  cause  of  the  shying  of  a  horse,  and  such  shying  is 
not  the  result  of  any  vicious  habit  of  the  horse,  the  fact 
that  it  contributed  to  plaintiff's  injury  does  not  prevent 
him  from  maintaining  an  action  against  the  owner  of  tbo 
dog.'' 

As  to  children,  the  law  requires  uo  higher  degree  of 
care  from  a  child  than  may  reasonab  y  be  expected  in 
view  of  its  age  and  situation.  A  child  is  not  bound  to  act 
with  the  care  and  judgment  of  a  grown  person.'*  Where 
a  child  is  in  the  custody  of  its  parent  at  the  time,  the  lat- 
ter must  use  ordinary  care  and  watchfulness.*     To  allow 


^  Sawj^cr  V.  Jackson,  5  N.  Y.  Leg. 
Obs.  380.  Compare  Wheeler  v.  Brant, 
23  Barlj.  324;  Logue  v.  Link,  4  E.  D. 
Smith,  G3. 

■^  Dcnison  v.  Lincoln,  131  Mass.  2.S6. 

^  Munu  V.  Koeil,  4  Allen,  431; 
Lynch  v.  Nunlin,  1  Q.  B.  29.  In 
Plunilcy  V.  Birgc,  124  Mass.  57,  21) 
Am.  Rop.  C15,  the  plaintiff,  a  boy  of 
thirteen,  hail  been  bitten  by  a  dog 
which  he  met  crossing  a  briilgc  and  at- 
tempted to  turn  him  back  by  striking 
at  him  with  a  stick.  In  affirming  a 
judgment  for  damages,  the  court  said: 
"The  second  ruling  was,  that  if  tlie 
Jjlaintiff  was  old  enongli  to  know  that 
striking  tlie  dog  would  be  likely  to  in- 
cite the  dog  to  bite,  and  did  strike 
the  dog,  and  did  thereby  incite  the 
dog  to  bite  him,  he  may,  nevertheless, 
recover,  if  the  jury  think  he  was  in 
the  exercise  of  such  care  as  would  be 
due  care  in  a  boy  of  his  years."  Wc 
are  of  opinion  that  there  is  no  error  in 
this  ruling.  It  was  necessary  that 
the  plaintiff,  though  a  boy,  should 
prove  that  he  was  in  the  exercise  of 
due  care.  But  due  care  on  his  part 
did  not  require  the  judgment  and 
tlioughtfulness  which  would  be  ex- 
pected of  an  adult  under  the  same  cir- 
cumstances.    It  is  that  degree  of  care 


which  could   reasonably  be  exiwctoil 
from  a  boy  of  his  age  and  capacity: 
Mann  v.  Reid,  4  Allen,  431;  Cartii- r, 
Towne,    98  Mass.  .'i(i7;  9G  Am.   Deo. 
CS2;   Lynch  v.  Smith,   104  Mass.  Tii!; 
G  Am.  Rep.   188;  Dowd  v.  Chicopco, 
IIG  Mass.  93.     If  tlie  court  had  riUed 
that  if  the  plaintiflF  was  old  enough  to 
know  that  striking  the  dog  would  be 
likely  to  incite  him  to  bite,   ho  could 
not  recover,  it  would  have  l;ceu  erro- 
neous.    This  is  not  the  true  tost.    It 
entirely    disregards    the  thouglitloss- 
ness  an<l  heedlessness  natural  to  lioy- 
hood.     The  plaintiff  may  have  ]>wn 
old  enough  to  know,  if  he  KtojJiiud  to 
reflect,  that  striking  a  dog  would  ha 
likely  to  provoke  him  to  bite,  ami  yet 
in   striking  him   he    may  have  licua 
acting  as  a  boy  of  his  ago  m  otild  or- 
dinarily act  under  the  same   circum- 
stances.    The  age  of  the  plaintillwas 
an  important  fact  for  the  consideration 
of  the  jury;  but  the  court   conuctly 
held  that  the  true  rule  was,  that  lie 
was  entitled  to  recover  if  lie  was  in 
the  exercise  of  that  degree   of  care 
which,     under    like     circumstances, 
would  reasonably  be  expected  of  a  boy 
of  his  years  and  capacity." 

*  Munn  V.  Reid,  4  Allen,  431 ;  Logue 
V.  Link,  4  E.  D.  Smith,  03. 


2503 


2509 


LIABILITIES   OF   OWNERS   OR   KEEPERS. 


§1388 


his  premises, 
e  person's  at- 
ras  cautioned 
ed  himself  to 
)le  and  prox- 
uch  shying  is 
[lorse,  the  fact 
3  not  prevent 
3  owner  of  the 

;her  degree  of 
)Q  expected  in 
3t  bound  to  act 
irson.**  Where 
0  time,  the  lat- 
sss.*    To  allow 

jonably  be  cxiwctcd 

3  age  .iikI   capacity: 

Allen,  431;  CaitiM,-. 

.   ri(>7;  90   Am.   Dee. 

nith,   104  :Mas.s.  52; 

;  Dowd  V.  Clui'opco, 

the  court  luul  ruled 

ifif  waa  old  enough  to 

ig  the  dog  would  l)e 

ill!  to  bite,  ho  could 

)uld  have  been  crro- 

lot  the  true  tost.    It 

■ds    the  thoughtloss- 

iiicss  natural  to  hoy- 

ktiff  may  have  lieen 

ow,  if  he  stopped  to 

fing  a  dog  -would  lie 

'  hull  to  bite,  and  yet 

he   may  have  hecu 

I  his  ago  would  or- 

ir  the  same  circum- 

I  of  the  plaintiff  was 

for  the  consideration 

the  court   coi-roctly 

ae  rule  was,  that  be 

tecover  it  he  was  m 

that   degree   of  care 

like     circumstauces, 

I  be  expected  of  a  l)oy 

capacity." 

■■1,4  Allen,  431;  Logue 

Imith,  03. 


a  child  to  play  with  a  strange  dog  is  not  per  se  negligence 
in  a  parent.* 

Illustrations.  —  A  permitted  his  mare  to  feed  in  the  same 

field  with  B's  bull.  ^  The  hull  gored  the  mare.     Held,  that  A 

had  no  right  of  action  against  B  therefor:  Car-penirr  v.  LaUa^ 

29  Kan.  501.     A  woman  ofifers  a  dog,  lying  on  the  sidewalk  in 

front  of  a  store,  a  piece  of  candy.     The  dog  springs  at  her  and 

bites  her.     Held,  not  contributory  negligence  in  tbo  woman: 

Lynch  v.  McNaily,  73  N.  Y.  347.     A  man  left  a  dog,  which 

ho  knew  had  bitten  people,  alone  in  his  sleigh  on  a  village  street. 

A  child  of  seven  came  along  and  "  meddled  "  with  the  whip, 

whereupon  the  dog  bit  him.     Held,  that  the  owner  was  liable: 

McUms  V.  Dodcje,^  38  Wis.  300;  20  Am.  Rep.  G.     A  horse  was 

accustomed  to  bite,  and  the  owner  kept  him  muzzled.     While 

the  horse  was  temporarily  unmuzzled,  standing  on  the  sidewalk 

in  front  of  the  owner's  premises,  the  plaintiff,  in  passhig  around 

tlio  horse,  was  bitten  upon  the  shoulder  by  him.   Held,  that  the 

owner  was  liable  in  damages,  although  the  plaintiff  also  knew 

that  the  horse  was  vicious,  but  did  not  discover  when  passing 

around  him  that  his  muzzle  was  off:    Koney  v.  Ward,  36  How. 

Pr.  255.     A  woman,  while  standing  on  a  bridge,  was  thrown 

over  the  railing  by  a  passing  bull.     Held,  that  she  was  not 

guilty  of  gross  negligence  in  not  going  off  the  bridge  whei  she 

first  saw  the  bull  coming:  Barnum  v.  Terpcnning,  Mich.,  1889. 

§  1388.  Trespassers  — Watch-dosfS.— That  the  plaintiff 
was  trespassing  on  the  land  of  the  owner  at  the  time  will 
not  defeat  the  action.^  A  person  has  a  right  to  keep  a 
watch-dog  for  the  defense  of  his  house,  his  garden,  and  his 
fields,  and  he  may  use  him  for  that  purpose  in  the  night- 
time;^ but  this  will  not  permit  a  man  to  have  a  ferocious 
dog  running  loose  in  his  grounds  in  the  daytime,  and  if 
he  injures  a  trespasser,  the  owner  will  be  liable.* 

*  Loomis  V.  Terry,  17  Wend.  496;  31 
Am.  Dec.  306;  Kelly  v.  Tilton,  3 
Keyes,  203;  Woolf  v.  Chalker,  31 
Couii.  121;  81  Am.  Dec.  175;  Sherfey 
V.  Bartley,  4  Sneed,  58;  67  Am.  Dec. 
597.  Even  if  the  owner  gi%'e  notice 
of  the  dog  being  in  the  grounds.  It  isi 
no  answer  to  such  an  action  that  a 
printed  notice  was  j)ut  up,  if  it  ap- 
pears that  the  plaintiff  could  not  read : 
Sarch  v.  Blackburn,  Moody  &  M» 
505;  4  Car.  &  1\  297. 


»  Munn  V.  Reid,  4  Allen,  431. 

"Marble  v.  Ross,  124  Mass.  47; 
Loomis  V.  Terry,  17  Wend.  496;  31 
Am.  Dec.  306;  Kelly  v.  Tilton,  3 
Keyes,  263;  Rider  v.  White,  65  N.  Y. 
54;  22  Am.  Rep.  600;  Glidden  v. 
Moore,  14  Neb.  84;  45  Am.  Rep.  98. 

5  Loomis  V.  Terry,  17  Wend.  496;  31 
Am.  Dec.  306.  No  action  lies  for  an 
injury  arising  from  the  defendant 
letting  loose  a  dog  in  his  own  premises 
for  their  protection  at  night:  Brock  v. 
Copelaud,  1  Esp.  203. 


§1389 


ANIMALS. 


2510 


Illustrations. — The  owner  of  uninclosed  pasture-land, 
ncros8  which  there  was  a  neighborhood  road  not  laid  out  as  a 
public  highway,  but  which  had  been  used  ever  since  the  country 
was  settled,  fastened  a  bull,  which  he  knew  to  be  vicious,  so 
that  a  person  passing  along  the  road  Avas  gored  thereby.  Held, 
that  he  was  liable,  though  he  had  warned  the  person  not  to 
pass:  Glidden  v.  Moore,  14  Neb.  84;  45  Am.  Rep.  98. 


§  1389.  Negfligence  in  Driving,  Securing,  or  Using 
Animals.  —  Every  person  having  charge  of  an  animal  is 
bound  to  use  due  care  under  the  circumstances  which 
surround  him,'  and  if  in  securing  or  driving  or  otherwise 
using  or  tending  such  animal  he  does  not  use  such  care, 
and  another  is  injured,  he  is  liable  in  damages.'^  Where 
there  is  no  want  of  care,  and  a  person's  horses  break  away 
and  do  damage,  he  is  not  liable.^  Driving  animals  along 
a  highway  is  not  such  an  unusual  use  of  them  as  to  require 
the  driver  to  exercise  extraordinary  care.*  But  the  driver 
of  a  cow%  known  to  him  to  be  vicious,  not  using  due  care,  is 
liable  to  any  person  injured  by  her,  who  is  in  the  exercise 
of  due  care.^    In  an  action  for  personal  injuries  occasioned 


^  Dolfingor  v.  Fiahback,  12  Bush, 
474;  Mereilith  v.  Reed,  26  Ind.  334; 
Frazer  r.  Kiinler,  2  Ilun,  514;  Sulli- 
van V.  Scripture,  .3  Allen,  565,  the  court 
saying:  "  And  what  is  reasonable  or 
due  care  depends  in  every  case  on  the 
Bubjeet-mattcr  to  which  the  care  is  to 
bo  applied,  and  the  circumstances  at- 
tending tliat    subject-matter  at  the 

time  wlioa   care  is  required 

The  defeudant's  horse  and  wagon,  at 
the  time  of  the  injury,  were  near  to  a 
military  encanipnient,  and  where  there 
was  a  throng  of  people.  If  so,  the 
defendant  was  bound  to  use  greater 
care  of  their  movements  than  the  law 
would  have  required  of  him  if  they 
had  been  in  a  less  frequented  place." 

'■'  Hewed  ('.  McNamara,  106  Mass. 
281 ;  Ficken  v.  Jones,  28  Cal.  618  (negli- 
gently  driving  cattle  through  streets); 
Dickson  y.  McCoy,  39 N.  Y.  400;  Good- 
man V.  Clay,  15  Pa.  St.  188;  53  Am. 
Dec.  580;  Barnes  v.  Chapin,  4  Allen, 
444;  81  Am.  Dec.  710;  Bowyer  v. 
Burlew,  3  Thomp.  &  C.  362;  Illidge 


V.  Goodwin,  5  Car.  &  P.  190;  Lynch 
V.  Nurdin,  1  Q.  B.  29;  Bennett  v.  Ford, 
47  Ind.  264;  Hummell  v.  Wester,  1 
Bright.  N.  P.  133;  Coggswell  v.  Bald- 
win, 15  Vt.  404;  11  Am.  Dec.  CS(j; 
Shawhan  v.  Clarke,  24  La.  Ann.  .S'JO. 
Where  defendants  knew  that  the  bull 
was  wild,  and  had  been  told  it  was 
safer  to  lead  him  by  a  ring  in  his  nose, 
but  tied  him,  head  and  foot,  it  was  for 
the  jury  to  determine  whether  dofond- 
ants  were  guilty  of  negligence  in  driv- 
ing him  on  the  highway,  tliouj:;h  tlie 
bull  had  never  attacked  anyone  liofore: 
Barnum  V.  Terpenning,  Mich.,  18!>9. 

a  Brown  v.  Collins,  53  N.  H.  442;  IG 
Am.  Rep.  372.  The  owner  of  a  run- 
away horse  is  not  responsible  for  the 
injury  resulting  from  a  collision  with 
another  horse  and  carriage,  no  negli- 
gence on  the  part  of  the  owner  of  the 
runaway  horse  being  shown:  Shawhan 
V.  Clarke,  24  La.  Ann.  390. 

*  Reeves  v.  R.  R.  Co.,  30  Pa.  St. 
454;  72  Am.  Dec.  713. 

*  Heweav.  McNamara,  100  Mass.  2S1. 


2510 

I  pasture-land, 
t  laid  out  as  a 
nco  the  countrj' 
D  be  vicious,  bo 
thereby.  Held, 
)  person  not  to 
p.  98. 

ing,  or  Using 

I  an  animal  is 
stances  which 
g  or  otherwise 

use  such  caro, 
lages.'^  Where 
ses  breakaway 

animals  along 
!m  as  to  require 

But  the  driver 
dug  due  care,  is 

in  the  exercise 
ries  occasioned 

ir.  &  P.  190;  Lynch 
29;  Bennett  v.  Ford, 
[mmcll  V.  Wostor,  1 
Coggswell  V.  B:il(l- 
11    Am.  Dec.  OSG; 
;e,  24  La.  Ann.  390. 
^  knew  that  the  bull 
[id  been  told  it  was 
ly  a  ring  in  his  nose, 
.  and  foot,  it  \v;w  for 
ino  whether  defend- 
f  negligence  in  driv- 
lighway,  though  the 
icked  anyone  hofore: 
Ining,  Mich.,  ISbO. 
|ns,  53  N.  H.  44-J;  IG 
'he  owner  of  a  run- 
responsihle  for  tlio 
fom  a  ccllision  with 
carriage,  no  ncgh- 
|of  the  owner  of  the 
Ing  shown:  Shawhan 
inn.  390. 
R.  Co.,  30  Pa.  St. 
713. 
inara,10GMa33.2Sl. 


2511 


LIABILITIES   OF   OWNERS   OR   KEEPERS. 


§1389 


by  the  defendant's  bull  while  being  led  through  a  street 
of  a  city,  the  jury  may  infer  that  the  defendant  knew  what 
is  common  knowledge  in  regard  to  the  propen.sitics  of  such 
an  animal;  and  testimony  that  the  defendant,  after  the 
accident,  said  that  it  was  careless  in  his  servant  to  load 
the  bull  in  the  manner  in  which  he  was  led  may  bo  con- 
sidered by  the  jury  as  an  admission  that  the  bull  needed 
to  be  kept  under  control,  and  that  the  care  taken  in  driv- 
ing him  through  the  street  was  insufficient.^  A  person 
allowing  a  horse  to  run  loose  in  the  streets  of  a  city  is 
guilty  of  negligence,  and  liable  for  the  damage  ho  does.'^ 
But  where  a  horse  strays  on  a  highway,  and,  without  ap- 
parent reason,  kicks  a  child,  no  action  will  lie  against  the 
owner  of  the  horse,  unless  ho  knew  that  the  horse  was 
likely  to  commit  such  an  act.^ 

Illustrations.  —  Defendant  was  intoxicated,  fell  asleep  in  Lis 
Bleigh,  and  his  horses  ran  away,  and  ran  against  the  ])laiiitifr's 
horse.  Held,  that  ho  was  liable:  Waldron  v.  Hoj^x  r,  1  \.  J.  L. 
339.*  Defendant  allows  his  mules  to  stand  alone  and  untied 
near  by  a  railroad  track,  so  that  the  wliistle  of  a  locomotive 
frightens  them,  and  they  run  away  and  injure  the  phiintifT's 
horses.  Held,  that  he  is  liable:  Drake  v.  Mount,  33  N.  J.  L.  441. 
Plaintiff  sustained  injuries  by  the  kick  of  a  horse  while  he  was, 
by  defendant's  invitation,  attending  a  sale  in  defendant's  yard, 
whicii  was  used  for  the  sale  of  horses  by  auction.  Plaintifl"  was 
walking  up  the  yard  behind  a  row  of  spectators,  who  were  watch- 
ing a  horse  then  on  sale.  The  horse  was  being  led  with  a  halter, 
by  a  servant  of  defendant's,  down  a  lane  formed  by  the  line  of 
spectators  on  one  side,  and  a  blank  wuil  on  the  other,  there  being 
no  barrier  between  the  spectators  and  the  horse.  When  tlio  hor.-'e 
was  about  ten  yards  from  ])laintiff  (the  crowd  of  spectators  then 
being  between  them),  anotiier  servant  of  the  defendant,  standing 
on  the  wall  side  of  the  lane,  suddenly  whipped  the  horse,  to  make 
him  trot  and  show  his  paces,  the  consequence  being  that  the 
horse  swerved  into  and  through  the  crowd,  who  made  way  for 
him,  and  lashing  out,  kicked  plaintiff.  No  evidence  was  given 
as  to  the  nature  of  the  blow,  of  the  character  of  the  horse,  or  of 

'  Linnehan  v.  Sampson,  126  Mass.  '  Cox  v.  Burbridge,  13  Com.  B.,  N. 

50C;  no  Am.  Rep.  692.  S.,  430;  9  Jur.,  N.  8.,  970;  32  L.  J. 

-Goodman  v.  Gay,  15  Pa.  St.  1S8;  Com.  P.  89;  11  Week.  Rep.  435. 

53  Am.  Dec.  589;  Rossell  v.  Cottom,  *  But  it  was  ruled  that  tresiiaaa  and 

31  Pa.  St.  526.  not  case  was  the  proper  form  of  action, 


g§  1390, 1391 


ANIMALS. 


2512 


the  manner  in  which  ho  was  led,  nor  was  any  evidence  given 
to  show  that  it  was  usual,  in  the  case  of  horse  sales  of  this  de- 
scription, to  erect  a  barrier  between  the  horses  and  the  specta- 
tors. Held,  that  there  was  evidence  of  negligence  on  the  part 
of  the  defendant's  servants  which  should  have  been  submitted 
to  tl)e  jury:  Abbott  v.  Freeman,  34  L.  T.,  N.  S.,  544.  A  lior.so 
and  wagon  were  left  standing  in  the  street,  the  horse  being 
unhitched.  Tho  servant  of  a  telegraph  company,  engaged  in 
repairing  the  wires,  allowed  a  broken  wire  to  strike  the  horse, 
thereby  frightening  him,  and  causing  him  to  run,  resulting  in 
the  death  of  tho  horse.  In  a  suit  against  the  company  for  tho 
value  of  tho  horse,  held,  that  tho  negligence  of  tho  driver  in 
leaving  the  horso  was  such  as  to  debar  the  owner  from  recover- 
ing:  Western  Union  Tel.  Co.  v.  Quinn,  5G  111.  319. 

§  1390.  Owner  Transferringr  Care  of  Animal  —  Bound 
to  Give  Notice  of  Vicious  Propensities.  —  One  letting  an 
animal  to  another  for  hire,  or  letting  a  biting  or  kicking 
horse  to  another  for  hire,  or  leaving  it  with  a  blacksmith 
to  bo  shod,  or  with  a  hostler  to  bo  groomed,  is  bound  to 
inform  the  party  receiving  the  horso  of  his  vicious  hab- 
its; otherwise  ho  will  be  liable  for  damages  which  may 
arise  in  consequence  of  these  habits.*  But  tho  habits 
must  be  habits  directly  dangerous,  as  kicking  and  biting 
in  horses,  hooking  in  horned  animals,  and  biting  in  dogs.' 

Illustrations,  —  Defendant  owned  a  mare  which  had  a  habit 
of  suddenly  "pulling"  back  upon  her  halter  when  excited  or 
restless.  This  habit  was  known  to  defendant.  He  loft  the 
mare  at  a  hotel,  kept  by  plaintiff's  employer,  to  be  cared  for, 
giving  plaintiff  no  notice  of  tho  habit.  While  plaintiff  was 
hitching  tho  raaro  in  tho  stable,  and  in  doing  so  had  put  her 
halter-rope  through  a  ring,  she  pulled  suddenly  back,  drawing 
the  rope  through  tho  ring.  Plaintiff's  finger  was  caught  be- 
tween tho  ropo  and  ring  and  torn  to  pieces.  Held,  that  defend- 
ant was  not  bound  to  notify  plaintiff  of  the  habit  of  the  mare  to 
pull:  Keshan  v.  Gates,  2  Thomp.  &  C.  288. 

§  1391.    Liability  for  Trespasses  of  Animals.  —  The 

mere  trespasses  of  animals,  without  any  other  injury, 
upon  the  uninclosed  lands  of  another,  give  no  riglit  of 

>  Thompson  on  Negligence,  p.  217,        'Id.;   Keshan  t>.  Gates,  2  Thompii 
Bee.  30;  Campbell  v.  Page,  67  i3arb.  113.    &  C.  288. 


2512 

ienco  given 
3  of  this  dc- 

tho  specta- 
on  tlio  part 
n  subiuittod 
14.  A  horso 
horso  being 
,  engaged  in 
ko  the  horso, 

resulting  in 
pany  for  the 
iho  driver  in 
from  recover- 


aal  —  Bonnd 

le  letting  an 
g  or  kicking 
a  blacksmith 
,  is  bound  to 
vicious  hab- 
3  which  may 
t  the  habits 
g  and  biting 
ing  in  dogs.' 

oh  had  a  habit 
hen  excited  or 
He  left  the 
be  cared  for, 
plaintiff  was 
0  had  put  her 
back,  drawing 
as  caught  bo- 
,  that  dcfend- 
of  the  marc  to 

imals.  — The 
ther  injury, 
no  riglit  of 

ates,  2  Thomp. 


2513 


LIABILITIES   OP  OWNERS   OR  KEEPERS.         §  1391 


action  against  the  owner;  they  are  deemed  by  the  law 
too  insignificant  to  bo  noticed.'  But  if  they  do  other 
damage  while  trespassing,  their  owners  are  liable,  without 
regard  to  proof  of  notice  of  their  mischievous  disposi- 
tion.'' At  common  law  the  owner  of  laud  was  not  obliged 
to  fence  against  cattle.'  The  owner  of  domestic  animals, 
such  as  horses,  cattle,  sheep,  swine,  etc.,  was  at  common 
law  bound  to  keep  them  safely  on  his  own  property.  If 
they  broke  out  and  got  upon  the  land  of  auotlior,  lie  was 
liable  for  the  damage  they  might  do  there,  without  re- 
gard to  scienter.*    And  this  is  the  rule  in  the   United 


'  Bash  V.  Brainard,   1  Cow.  78;  13 
Am.  Dec.  513;  Caulkins  v,  Mathews, 

5  Kan,  191;  Maltby  v.  Dihel,  5  Kan. 
430;  Hesa  v.  Lnpton,  7  Ohio,  21G;  Dur- 
ham V.  Musselman,  2  Blackf.  96;  18 
Am.  Dec.  13.3;  Brown  v.  Giles,  1  Car. 

6  P.  118;  Woolf  V.  Chalkcr,  31  Coun. 
121;  81  Am.  Dec.  175.  Contra,  Young 
V.  Harvey,  16  Ind.  314;  Knight  v. 
Abert,  6  Pa.  St.  472;  47  Am.  Dec.  478, 
the  court  saying:  "In  this,  and  per- 
haps every  other  American  state,  an 
owner  of  cattle  ia  not  liable  to  an  ac- 
tion for  their  browsing  on  his  neigh- 
bor's uninclosed  woodland.  But  it 
follows  not  that  because  such  brows- 
ing is  excusable  as  a  trespass,  it  is 
matter  of  right.  It  ia  an  immunity, 
not  a  privilege;  or,  at  most,  a  license 
revokablo  at  the  will  of  the  tenant, 
who  may  turn  his  neighbor's  cattle 
away  from  his  grounds  at  pleasure. 
Their  entry  is,  in  strictness,  a  tres- 
pass, which,  for  its  insigniiicance,  is 
not  noticed  by  the  law,  probably  on 
the  foot  of  the  maxim,  de  minimis, 
or  perhaps  because  it  is  better  that 
all  waste  lands  should  be  treated  as 
common  without  stint.  It  certainly 
saves  vexatious  litigation.  The  par- 
ticular loss  from  it  is  unappreciable, 
oven  as  a  subject  of  nominal  damages, 
and  would  probably  be  held  so,  even 
in  England,  where  waste  land  is  alto- 
gether worthless." 

■'  Woolf  V.  Chalker,  31  Conn.  121;  81 
Am.  Dec.  1 75.  A  dog,  while  trespassing 
on  A'a  land,  kills  As  cow.  The  owner 
of  the  dog  is  liable,  although  he  had 
no  previous  knowledge  of  the  dog's  vi- 
163 


cious  propensity:  Chunotr.  Larson,  43: 
Wis.  536;  28  Am.  Rep.  507.  If  oxen, 
break  the  plaintiflf's  close  and  kill  liis 
cow,  the  owner  is  an3wcral)lo,  without 
proving  that  ho  knew  they  were  ac- 
customed to  gore:  Angus  v.  Radin,  5 
N.  J.  L.  815;  8  Am.  Dec.  626. 

»  French  %\  Cresswell,  13  Or.  418. 
And  see  Hahn  v.  Garratt,  69  Cal. 
146;  Bullardr.  Williamson,  69  Iowa, 
416;  Lawrence  v.  Combs,  37  N.  H.  331 ; 
72  Am.  Dec.  .332;  Holdcu  r.  Shattuck, 
34  Vt.  336;  80  Am.  Dec.  084. 

♦  McDonnell  v.  R.  R.  Co.,  115  Mass. 
564;  Decker  r.  Gammon,  44  Me.  .322; 
69  Am.  Dec.  99;  Studwell  v.  Ritch, 
14  Conn.  292;  Pago  v.  Hollingsworth, 
7  Ind.  317;  Van  Leuven  v.  Lyke,  1  N. 
Y.  515;  49  Am.  Dec.  346;  Stafiord  v. 
IngersoU,  3  Hill,  38;  Dolph  v.  Ferris. 

7  Watts  &  S.  367;  Pierce  v.  Hosmer, 
66  Barb.  345;  McBride  v.  Lynd,  55 
111.  411;  Dunckle  v.  Kocker,  11  Rirb. 
387;  Angus  V.  Radin,  5  N.  J.  L.  815; 

8  Am.  Dec.  626;  Holliday  v.  iLarsh,  3 
Wend.  142;  20  Am.  Dec.  ()78;  Gres- 
ham  V.  Taylor,  51  Ala.  505;  Forsytho 
V.  Price,  8  Watts,  282;  .34  Am.  Dec. 
465;  Myers  v.  Dodd,  9  Ind.  290;  03 
Am.  Dec.  624;  Mcllvaino  ?'.  Lantz,  100 
Pa.  St.  586;  45  Am.  Rep.  400;  Indian- 
apolis etc.  R.  R.  Co.  V.  McClure,  26 
Ind  370;  89  Am.  Dec.  467;  Eames  v. 
R.  R.  Co.,  98  Mass.  560;  96  Am.  Dec. 
676.  "The  common  law,"  it  is  said 
in  VanLenvonv.  Lyke,  supra,  "holds 
a  man  answerable,  not  only  for  his  own 
trespass,  but  also  for  that  of  his  do- 
mestic  animals;  and  as  it  is  the  natu- 
ral and  notorious  propensity  of  many 


§  1391 


ANIMALS. 


2514 


States.'  And  in  many  of  the  states  permitting  stock  to 
rim  at  largo  is  such  ncgligeuco  on  the  part  of  tho  owner 
us  to  bar  all  right  of  recovery  for  any  injuries  to  them,  ex- 
cept such  as  are  wanton  or  willful.^    In  other  states  if  tho 


of  such  iiriimals,  such  as  nxon,  liorHoa, 
Bliecp,  hwiiie,  an<l  llie  like,  to  rovo, 
tho  fiwiuir  is  hounil  at  his  peril  to 
confiiiu  Uiciu  on  his  own  land;  and  if 
thoyosoipo  and  commit  a  trcspasH  on 
tho  luiuld  of  another,  unless  through 
defect  of  fences  whiclj  the  latter 
ouglit  to  repair,  tho  owner  is  liahlo  to 
an  action  of  trespass  (^luire  cldumni 
/rrijif,  t!iough  ho  had  no  notice  in 
fact  of  iiucli  propensity:  3  Bla.  Com. 
211;  1  Ciiit.  I'l.  70.  And  where  tho 
ov/acr  of  such  animals  does  not  con- 
tine  them  on  his  own  land,  and  thoy 
escape  and  commit  a  trespass  on  the 
lands  of  anotlier,  without  tho  fault  of 
tho  hitter,  tho  law  deouis  tho  owner 
himself  ;v  trespasser  for  having  per- 
mitted his  animals  to  hreak  into  the 
inclosurc!  of  the  former  under  such 
circumstances.  And  in  declaring 
against  the  defcadant  in  an  action  for 
Bucli  trespass,  it  ia  competent  for  tho 
plaiutiil  to  allege  tlio  breaking  and 
cntcrin  .r  his  closo  by  such  animals  of 
the  dcleridant,  and  there  committing 
particular  mischief  or  injury  to  the 
person  or  proi)erty  of  the  plaintiff, 
an<l  upon  proof  of  the  allegation,  to 
recovir  as  well  for  tho  damage  for 
tho  unlawful  entry  as  for  the  other  in- 
juries so  alleged,  by  way  of  aggrava- 
tion of  the  trespass,  without  alleging 
or  proving  that  tho  defendant  had 
notice  that  his  animals  had  been  ac- 
cuatomt'd  to  do  such  or  similar  mis- 
chief. Tho  breaking  or  entering  tho 
close,  in  such  action,  is  the  substan- 
tive allegation,  and  the  rest  is  laid  as 
matter  of  aggravation  only." 

'  Iixlhina.  — Indianapolis  etc.  R.  R. 
Co.  V.  McClure,  26  Ind.  370;  89  Am. 
Dec.  407;  Cin.  etc.  R.  R.  Co.  v.  Street, 
50  Ind.  225;  Jeffersonville  etc.  R.  II. 
Co.  V.  Underbill,  48  Ind.  389;  Lafayette 
etc.  R.  R.  Co.  V.  Shriner,  C  Ind.  141. 

Marjilnml.  —  Bait.  etc.  R.  R.  Co.  v. 
Lamborn,  12  Md.  257;  Keech  v.  R.  R. 
Co.,  17  Md.  33. 

Micluipm.  —  Williams  v.  R.  R.  Co., 
2  Mich.'  2(50;  55  Am.  Dec.  59. 

Minnesota,  —  Locke  v.  R.  R.  Co.,  15 
Miou.  351. 


Nao  Jrrsiy, — Vandogrift  v.  Rcdi- 
ker,  22  N.  J.  L.  185;  51  Am.  Lku. 
2ti2;  Price  v.  R.  R.  Co.,  31  N.J.  L 
229;  32  N.  J.  L.  19. 

Nfu;  York.  — llalloran  v.  R.  R.  Co., 
2  K.  1>.  Smith,  257;  Marsh  r.  U.  U. 
Co.,  14  Barb.  3(54;  Tonawaiida  U.  U. 
Co.  V.  Munger,  5  Deiiio,  255;  t!)  Am. 
Doe.  239;  Clarko  i>.  K.  R.  Co.,  1 1  li;irl). 
112;  Torry  v.  R.  R.  Co.,  22  V.ul).  r)")-, 
Munger  r.  R.  R.  Co.,  4  N.  \.  349;  .JS 
Am.  Deo.  384. 

Penntn/lnania. — R.  R.  Co.  v.  Skin- 
ner, 19  I'a.  St.  298;  57  Am.  Dou.  (ir.4; 
Reeves  v.  R.  R.  Co.,  .30  Pa.  St.  455; 
72  Am.  Due.  713. 

\Vkcoji4n. — Chicago  etc.  R.  R.  (!o. 
V.  Goss,  17  Wis.  428;  Stucko  r.  R.  R. 
Co..  9  Wis.  203;  Bunnettv.  R.  R.  Co., 
19  Wis.  145;  Galpin  v.  R.  R.  Co.,  19 
Wis.  G04. 

Kentiicki/.  —  Louisville  etc.  R.  R. 
Co.  V.  Ballard,  2  Met.  (Ky.)  17/. 

Masnachunettii.  —  Stearns  r.  11.  It. Co., 
1  Allen,  493;  McDonnell  v.  R.  R.  Co., 
115  Mass.  504;  Maynard  v.  K.  R.  Co,, 
115  Mass.  458;  15  Am.  Rep.  Ill); 
Eames  v.  R.  R.  Co.,  98  ALiss.  500;  90 
Am.  Dec.  076. 

New  HampHhire.  —  Giles  v.  K.  R. 
Co.,  55  N.  H.  552;  Mayl)«rry  v.  R. 
R.  Co.,  47  N.  II.  391. 

Vermont.  —  Jackson  i\  R.  R.  Co., 
25  Vt.  150;  60  Am.  Dec.  240;  Trow  v. 
R.  R.  Co.,  24  Vt.  488;  58  Aiu.  Dec. 
191. 

^  Indiana.  —  Indianapolis  etc.  R,  R. 
V.  McClure,  26  Ind.  370;  89  Am.  Dec. 
407;  Lafayette  etc.  R.  R.  Co.  )'.  Shri- 
ner, 6  Ind.  141;  Indianapolis  etc.  R. 
R.  Co.  V.  Barter,  38  Ind.  557;  Jcffor- 
sonville  etc.  R.  R.  Co.  v.  Undorliill,  48 
Ind.  389;  Cincinnati  etc.  R.  11.  Co.  v. 
Street,  50  Ind.  225. 

Neto  Jersey. — Vandogrift  v.  Redi- 
ker,  22  N.  J.  L.  185;  51  Am.  Dec.  21)2; 
Price  V.  R.  R.  Co.,  31  N.  J.  L.  229; 
32  N.  J.  L.  19. 

Minneaota.  —  Locke  v.  R.  R.  Co,,  15 
Minn.  351. 

MoJisachnsettn.  —  Mayiiard  c.  R.  R. 
Co.,  115  Mass.  458;  15  Am.  Rep.  119; 
McDonnell  v.  R.  R.  Co.,  115  Mass. 


2515 


LIABILITIES    OF   OWNKRS    OTl    KKEPEIIS.  §  1091 


.(,._  Giles  V.  K.  R. 

i2;   Mayborry  v.  R. 
1391. 
]ksou  V.   R-  R'  ''°'> 

I.  Dec.  240;  Trow  v. 
488;    58  Aiu.  Deo. 

Idiauapolis  etc.  R.  R. 
Vl.  370;  S'J  Am.  Dec. 

fc.  R.  R.  <■'"•  "•  ^l^"- 
IlndiauapolH  oti-.  R. 
38  Intl.  r.57;  Jfflor- 
I  Co  V.  Uiiilcrliill,  4s 
Lti  etc.  K.  R-  ^'o-  '•• 

rVantlognft  v.  Rcili- 
Iso;  5lA....I>eo.202; 
L.  31  N.  J.  L.  -i-jg; 

locke  V.  R.  R- <-'o- ^5 

-Mayiiarcl  v.  R.  R 
b8;  15  Am.  Rep.  1 1  J; 
[  R.  Co.,  115  Mass. 


oscapo  of  tho  cfittlo  is  not  duo  to  the  nogligenc.>  of  tho 
owner,  who  hag  Ui+ed  duo  care  to  r(!straiu  thoni,  ho  may 
recover  damages  if  thoy  arc  killed  or  injured  hy  tho  nog. 
ligoiice  of  another,  oven  though  thoy  aro  trespassing  at 
the  time.'  In  other  states,  again,  cattle  may  run  at  largo 
on  uuinclosed  lands,  and  one  is  obliged  to  fence  his 
neighbor's  cattle  out,  if  ho  desires  to  bo  free  from  thoir 
trespasses;  and  unless  they  break  through  a  lawful  fence, 
thoir  owner  is  not  responsibk;.-  "  This  rulo,"  says  .hidgo 
Thompson,  "is  in  force  in  several  of  tho  states;  has  boon 
modified  in  some  and  abrogated  in  others."'  Tlui  stat- 
utes on  tho  subject  aro  various,  both  in  their  language  and 
construction,  and  cannot  bo  sot  out  here.*     If  contiguous 


504;  Kames  v.  R.  II.  Co.,  98  Mass.  501; 
00  Am.  Dec.  G7G;  Darling  v.  II.  11. 
Co.,  ll'l  Mass.  118. 

Vn-iiiont.  — Jackson  v.  It.  R.  Co.,  23 
Vt.  I.')l);  GO  Am.  Dec.  240. 

Mnii/itnd. — Biltimoro  etc.  R.  R. 
Co.  V.  Lamborn,  12  Md.  2.")7;  Keech  v. 
K.  11.  Co.,  17  Md.  33.  But  seo  Balti- 
iiioru  etc.  R.  R.  Co.  v.  Mulligan,  45 
Md.  487. 

Pdiii-o/lvaiHa, — R.  R.  Co.  v.  Skin- 
ner, I'J  i'a.  St.  298;  57  Am.  Dec.  054; 
North  Pennsylvania  R.  II.  Co.  r.  Reli- 
mail,  41)  Pa.  St.  101;  88  Am.  Dee.  491; 
Drake  /•.  R.  R.  Co.,  51  Pa.  St.  240. 

Xcw  York:  — Tonawanda  etc.  R.  R. 
Co.  ?'.  Munger,  5  Denio,  2.>9;  49  Am. 
Dec.  239. 

'  Coiiiicctkut.  —  Isbell  i*.  R.  R.  Co., 


CtiUfonda. — Waters z'.  Moss,  12Cal. 
535;  ~'.\  Am.  Dee.  501;  Logan  /•.  (icd- 
ney,  38  Cal.  r)8l. 

lown.  — Alyer  v.  R.  R.  Co.,  10  Inwa, 
208. 

Mismiiri.  —  Gorman,  v.  R.  R.  Co., 
20  M(j.  412;  72  Am.  Dec.  220;  Han- 
nibal etc.  11.  11.  Co.  /'.  Keuney,  41  Mo. 
271;  MrPlieeters  r.  R.  R.  Co.,  4.1  .Mo. 
23;  Tar  water  r.  11.  R.  Co.,  42  ,M.>.  193. 

.][is.<!,s.i!ppi.  —  Viekslmrg  utc.  K,  R, 
i\  Paltoii,  31  ]\Iisa.  157;  Oti  Am.  Dee. 
552;  Memphis  etc.  R.  R.  Co.  r.  lilake- 
ncy,  43  Miss.  218;  Mobile  (^te.  R,  R. 
Co.  i:  Hudson,  50  Miss.  572;  Uail'ord 
r.  R.  R.  Co.,  43  Mi.-5S.  233;  Now  Or- 
leans  ete.  R.  R.  Co.  v.  Field,  40  Miss. 
573. 

Ohio.  —  (.'ranston  v.  Cinciimati  etc. 


27  Vonn.  393;  71  Am.  Dec.  78;  Bulk-  R.  l;.Co.,  I  Handy,  193;  KcrwliaeUer 

ley  r.  R.  R.  Co.,  27  Conn.  479.  r.  R.  K.  Co.,  3  Ohio  St.  172;  02  An). 

Illiiwi.^.  — Toledo  etc.  R.  R.  Co.  v.  Dec.  210;  ( 'leveland  etc.  R.  R.  Co.   i.\ 

Johiisim,  74  111.  83;  Cairo  etc.  R.  R.  Elliott,  4  Ohio  St.  474;  Central  etc.  R. 

Co.  r.  Woolscy,  85  111.  370;  Ohio  etc.  R.  Co.  i:  Lawrence,  13  Oliio  St.  07;  82 

R.  R.  Co.  ('.  Fowler,  85  111.  21;  Illinois  Am.  Doc.  434:  Marietta  etc.  R.  R.  Co. 


et,'.  R.  R.  Co.  V.  Patchin,  10  111.  198; 
01  .Vni.  Dee.  05. 

Iviii-ia.i. — Pacitic  R.  R.  Co.  v. 
Brown,  14  Kan.  409. 

.1/  /.vw'(''/*((.v('/<.s. — Towne  v,  R.  R.  Co., 
124  Ma^s.  101. 


V.  Stephenson,  24  Ohio  St.  48. 

Soti'h  ('iroliiM.— Murray  r.  R.  R. 
Co.,  lORicli.  227;  70  Am.  Dec.  219. 

••  1  Thompson  on  Negligence,  'J  10. 

*  Seo   1    Thompson  on   Ne,;,'ligence, 

210-215,  where  a  digest  of  the  deeis- 

■  Chicago  etc.  R.  R.  Co.     ions  of  tlie  states  construing  the  stat- 


V.  (loss,  17  Wis.  428;  Curry  v.  R.  R. 
Co.,  43  Wis.  005;  Laude  v.  R.  R.  Co., 
33  Wis.  040;  McCandleas  v.  R.  R.  Co., 
45  Wis.  .305. 

''Al'iliama.  —  Mobile  etc.  R.  R.  Co. 
V.  Williams,  53  Ala.  595. 


iites  in  regard  to  fences  in  tlie  case  of 
injuries  to  animals  is  given;  Knox  v. 
Tucker,  48  Me.  373;  77  Am.  Dec.  233. 
In  Iowa,  to  entitle  a  plaintill'  to  re- 
cover lor  damages  cau'^^cd  by  defend- 
ant's -Attlo,  <i£ile  luuuiug  at  Urge, 


§ 


1391 


ANIMALS. 


'2bm 


land-o^\Tiors,  by  parol  agreement,  divide  the  fence  be- 
tween them,  such  agreeme  it  is  binding  so  long  as  they 
act  under  it;  and  if  one  fails  to  make  his  part  a  legal  fence, 
and  the  other's  cattle  escape  into  his  field,  he  has  no  right 
to  impound  them.*  If  both  parts  of  a  partition  fence  are 
out  of  repair,  and  it  cannot  be  proved  whether  the  ani- 
mals entered  through  the  part  the  plaintiff  was  bound  to 
keep  up  or  not,  there  can  be  no  recovery.^  Where  land- 
owners mutually  waive  the  duty  of  keeping  up  a  partition 
fence,  rach  is  liable  for  trespasses  of  his  cattle  to  the 
other.'  In  an  action  for  a  trespass  by  defendant's  ani- 
mals upon  plaintiff's  ground,  the  plaintiff  cannot  recover, 
in  addition  to  the  actual  damages  done  by  them,  the  cost 
of  keeping  them  confined  after  he  took  them.'*  Nor  is 
the  defendant  liable  for  inroads  of  others'  cattle  through 
the  breach  of  fence  made  by  his  own,  unless  occurring 
under  his  control.*  Where  the  damages  were  for  inju- 
ries to  the  close  itself  on  account  of  defendant's  stallion 
breaking  into  it,  it  was  held  that  they  did  not  bar  a  sub- 
sequent action  for  damages  resulting  to  plaintiff  in  con- 
sequence of  his  mare  running  in  said  close,  having  been 
gotten  with  foal  by  said  stallion,  —  the  fact  of  her  being 
Avith  foal  not  being  known,  and  the  damage  to  plaintiff 
therefrom,  through  loss  of  her  work,  etc.,  not  having  ac- 
crued when  the  former  action  was  tried, 


breaking  into  the  close  of  plaintiff  and 
destroying  hia  crops,  he  must  sliow 
that  the  premises  trespassed  upon 
were  inclosed  by  a  lawful  fence.  The 
connnon-law  rule  that  every  man  is 
required  to  keep  his  cattle  upon  his 
own  premises  under  penalty  of  an- 
swering in  damages  fur  injuries  com- 
mitted by  them  wliile  running  at 
large  is  not  applicable  to  the  wants, 
habits,  and  uec  issities  of  the  people 
of  tliis  state,  nor  in  hiu  uiony  with  the 
genius  of  our  institutions,  and  *^^hero- 
fore  has  not  been  adopted,  and  it  not 
the  law  of  this  state.  One  wlio  sues 
for  a  trespass  by  cattle  upon  his  land 
must  show  that  he  maintained  n.  sutfi- 
cieut  fence:  Frazier  v.  Nortinus,  34 


6 


Iowa,  82.  A  horse  in  the  street,  dam- 
aging a  barn-yard  fence  while  ti^liting 
a  horse  that  was  inside,  is  liabh;,  un- 
der the  Wisconsin  s*'atuto,  to  I)e  dis- 
trained '  y  the  owner  of  the  yard,  ."g 
"doing  damage  within  his  incloaurc  ": 
Pettit  V.  May,  34  Wis.  CGG. 

1  Hitchcock  V.  Tower,  5*5  Vt.  (50. 

^  Deyo  V.  Stewart,  4  Denio,  101. 

»  Milligan  v.  Wehinger,  C8  Pa.  St. 
235.  As  to  partition  fences  generally, 
see  note  to  Myers  v.  Dodd,  9  lud.  '21)0; 
68  Am.  Dec.  624. 

♦  North  V.  McDonald,  47  Barb. 
528. 

"  Durham  v.  Goodwin,  .')4  111.  409. 

•  Hagau  V,  Casey,  30  Wis.  553. 


.:^:j^. 


■T 


2517 


LIABILITIES   OF   OWNERS   OR  KEEPERS. 


§  1392 


lald,    47    Barb. 


Illustrations. — Defendants'  horse  having  injured  the 
plaintiff's  mare  by  biting  and  kicking  her  througli  the  fiMice 
separating  the  plaintiff's  land  from  the  defendants',  JteUl,  that 
tliere  was  a  trespass  by  the  act  of  the  defendants'  horse,  tor 
which  the  defendants  were  liable,  apart  from  any  question  of 
negligence  on  their  part:  Ellis  v.  Loftus  Iron  Co.,  L.  R.  10  Com. 
P.  10;  23  Week.  Rep.  246.  Defendant's  bull  escaped  from  his 
pasture  onto  plaintiff's  land,  through  a  gap  in  a  fence  which 
plaintiflf  was  bound  to  maintain,  and  there  injured  plaintiff's 
horse.  Held,  that  defendant  was  not  liable,  as  the  injury  was 
the  result  of  plaintiflF's  neglect:  Scott  v.  Grover,  56  Vt.  499;  48 
Am.  Rep.  814.  A  and  B  occupy  adjoining  lands,  inclosed 
with  one  fence  and  forming  one  field,  and  A  authorizes  C  to 
turn  cattle  into  the  inclosure,  representing  to  C  that  he.  A,  owns 
the  whole.  The  cattle  go  upon  the  land  of  B.  Held,  C  is  lia- 
ble in  trespass  for  all  the  damage  done  by  the  cattle,  notwith- 
standing that  he  may  have  believed  that  A  had  full  authority 
so  to  do:  Daniels  v.  Aholtz,  81  111.  440.  A  and  B,  adjoining 
land-owners,  made  a  parol  agreement  to  keep  in  repair  the 
partition  fence,  and  A  leased  his  land.  Held,  that  A's  tenant 
could  not  maintain  an  action  against  B  for  damages  caused 
by  the  latter's  animals,  which  broke  through  that  portion  of  the 
fence  which  A  was,  by  the  terms  of  the  agreement,  to  maintain: 
Bayncs  v.  Chnstain,  68  Ind.  376.  The  beast  of  the  defendant 
escaped  from  his  field  through  an  insufficient  fence  into  the 
field  of  A,  thence  int"  the  field  of  B,  and  thence  into  the  field 
of  plaintiff,  and  inji  d  the  plaintiff's  mare.  Held,  that  the 
defendant  was  liable  lor  the  injuries,  although,  as  between  him 
and  A,  the  latter  was  bound  to  keep  the  fence  between  their 
fields  in  repair,  although  the  fence  between  the  plaintiff's  field 
and  B's  was  insufficient,  and  although  the  defendant  did  not 
know  that  the  beast  was  vicious:  Ly/.-"'  v.  MerricJc,  105  Mass. 
71.  The  action  was  for  injuries  to  a  <;•'  't  while  lawfully  in  the 
l)asture  of  a  third  person,  caused  by  the  defendanc's  dog,  which 
he  had  unlawfully  taken  within  the  pasture.  Held,  that  no 
averment  of  notice  of  a  vicious  disposition  of  the  dog  was  neces- 
sary to  render  the  defendant  liable:  Green  v.  Doyle,  21  111.  A  pp. 
205. 

§  1392.  Driving  Cattle  on  Highway.  —  As  a  man  has 
a  riglit  to  drive  his  cattle  along  the  highway,  and  as  it  is 
diliicult  even  with  care  to  drive  cattle,  the  principle  of 
the  law  which  required  the  owner  of  cattle  to  keep  them 
out  of  his  neighbor's  land  at  his  peril  is  so  far  modified  as 
to  hold  the  owner  not  liable  for  the  trespasses  of  his  cattle 


§1393 


ANIMALS. 


251S 


which,  while  being  properly  driven  along  the  highway, 
casually  wander  on  the  land  of  another,  provided  ho  re- 
moves them  with  reasonable  promptitude.'  But  as  cattle 
have  no  more  than  the  public  any  right  in  the  highway 
except  to  pass  and  repass,  if  the  owner  puts  them  there  to 
graze,  and  they  get  into  another's  lot,  he  is  liable.^  And 
if  after  lawfully  getting  into  the  close  adjoining  the  high- 
way they  proceed  into  that  of  another  beyond,  their  owner 
is  responsible  for  this  second  trespass,^ 

§  1393.  Keeping  Diseased  Animals.  —  Keeping  dis- 
eased animals  on  one's  premises  —  even  if  the  disease  is 
an  infectious  one  —  is  not  per  se  negligence,  though  there 
may  be  animals  of  another  on  adjoining  premises.''  But 
where  diseased  animals  trespass  on  another  man's  land 
and  infect  his  animals,  the  owner  of  the  diseased  animal-J 
is  liable  without  proof  o(  scienter;^  and  so  where  there  i 
fraud  or  false  representations.**  An  action  will  lie  to  re- 
cover damages  sustained  by  the  negligence  of  servants 
having  the  care  of  cattle  which  they  know  to  be  suffering 
from  an  infectious  disease,  in  allowing  such  cattle  to  inter- 
mingle with  other  cattle.''  In  an  action  for  bringing 
horses  diseased  with  glanders  to  the  farm  of  the  plaintiff, 
whereby  the  horses  and  stock  of  plaintiff  became  infected 


1  Hartford  y.  Brady,  114  Mass.  466; 
19  Am.  Rep.  377;  Stackpole  v.  Healy, 
16  Ma.ss.  8.S;  8  Am.  Dec.  121;  Mc- 
Donnell V.  R.  R.  Co.,  115  Mass.  564; 
Coal  V.  Cruiiimct,  13  Mo.  2.30. 

'^  Stackpole  v.  Healy,  16  Mass.  33;  8 
Am.  Dec.  121;  Lyman  r.  Gipson,  18 
Pick.  422;  Pool  v.  Alger,  11  (Jray, 
489:  71  Am.  Dec.  726;  Avery  r.  Max- 
well, 4  X.  H.  36;  Harrison  i:  Brown, 
5  Wi.s.  27.  A  liter  where  by  a  by-law 
of  the  town  cattle  are    permitted  to 

fraze  iipon  the  highway:  HoUaday  v. 
larsli,  3  Wend.  142;  20  Am.  Dec.  678. 
^  McDonnell  ?-.  R.  R.  t'o.,  115  Mass. 
564;  Mills  v.  Stark,  4  N.  H.  512;  17 
Am.  Dec.  444. 

♦  Fisher  /;.  Clark,  41  Barb.  329; 
MiUa  V.  R.  R.  Co.,  2  Rob.  (N.  Y.)  326; 


affirmed  41  N.  Y.  619.  Allf.,-  hy 
statute  in  Illinois:  111.  Laws  ISil."),  p. 
12(5,  sec.  2;  Herrick  v.  Gary,  (jj  111, 
101;  83111.  85. 

*  Barnum  v.  Vandusen,  Ki  Conn. 
200;  Noyes  v.  Coll)y,  30  N.  H.  14;!; 
Eaton  »).  Winnie,  20  Mich.  IT)!);  4  Am. 
Rep.  377.  One  knowing  his  cattle  to  l)o 
infected  with  a  contagious  di.siaM'.  ami 
allowing  them  to  run  at  lar;;o,  is  liable 
to  anotlier  injured  thereby,  witliout 
regard  to  any  statute  prohibiting  im- 
portation of  cattle:  Kemmish  r.  Hill, 
30  Fed.  Rep.  7.-)9. 

»  Eaton  V.  Winnie,  20  Mich.  loT;  i 
Am.  Rep.  377. 

'  Earp  V.  Faulkner,  34  L.  T.,  N.  S,, 
284. 


2518 


2519 


LIABILITIES    OP    OWNERS    OR   KEEPERS. 


S  1394 


the  higlrway, 

ovided  ho  rc- 

But  as  cattle 

the  highway 

them  there  to 

liable.^     And 

ling  the  high- 

d,  their  owner 


•  Keeping    dis- 
'  the  disease  is 
I,  though  there 
remises.*     But 
er  man's  land 
seased  animal?* 
where  there  i 
L  will  lie  to  re- 
ice  of  servants 
to  be  suffering 
cattle  tointer- 
for   bringing 
3f  the  plaintiff, 
ecame  infci;tcd 

Y.   C19.      Allfn-  l)j 
HI.  Laws  1S(),">,  ij. 
rick.  V.  Gary,  Ij.'j  111. 

andusen,  It)  ('"un. 
ilhy,  30  N.  11.  14;i; 
20  Mich.  IT)!);  4  Am, 
owing  his  cattiti  to  Iw 
itagious  di.si'iiM'.  .uul 
run  at  lar;;o,  if-liulile 
I  therehy,  witlimit 
tute  prohibiting  iin- 
Keuunish  c.  Ball) 

lie,  20  Micii.  l.";  i 

ucr,  34L.T.,^'.«., 


with  the  same  disease  and  died,  t.i'.e^/royam^rt,  of  the  action 
is  not  deceit;  but  the  liability  of  defendant  arises  from 
the  fact  of  his  taking  horses  known  by  him  to  be  infected 
with  a  dangerous  disease  into  plaintiff's  close/  Under 
a  statute  giving  a  right  of  action  against  one  willfally 
and  knowingly  driving  diseased  and  distempered  cattle, 
etc.,  defendant's  knowledge  of  the  diseased  condition  of 
his  cattle  must  be  shown.^ 

Illustrations.  —  The  owner  of  diseased  horses  negligently 
allows  them  to  gnaw  through  his  wall  into  an  adjoining  .'-tahle, 
or  to  go  to  drink  at  a  public  tank,  whereby  other  hors^'H  take 
the  disease.  Held,  that  he  is  liable  to  the  owner  of  tho  latter: 
Milh  V.  R.  R.  Co.,  2  Rob.  (N.  Y.)  326.  G.'s  sheep,  infected  with 
the  scab,  escaped  into  H.'s  pasture  through  defects  in  G.'s  part 
of  the  division  fence,  and  caused  a  flock  consisting  of  shoop  of  H. 
and  sheep  of  H.'s  father,  to  become  infected.  Held,  tliat  H. 
could  recover  of  G.,  although  H.'s  sheep  might  have  caught 
the  infection  from  those  of  his  father,  if  the  latter's  sheep  had 
become  tirst  infected  from  G.'s  sheep:  Herrick  v.  ('(vry,  (1.5  111, 
101.  A's  sheep,  being  diseased,  got  into  B's  field,  where  his 
sheep  were  grazing,  and  infected  theui  with  the  disease.  It  did 
not  appear  how  they  got  there.  A,  on  being  told  of  it,  used  ex- 
pressions indicating  knowledge  that  his  sheep  were  diseased. 
In  an  action  against  him  for  suffering  his  sheep  to  go  at  large, 
held,  that,  in  the  absence  of  negligence,  proof  of  a  sdenfrr  was 
necessary,  and  there  was  'lo  sullicient  evidence  of  it:  Cooke  v. 
Wamui,  2  Hurl.  &  C.  332;  32  L.  J.  Ex.  2G2.  By  a  railway 
accident  a  large  number  of  swine  were  loosed.  The  defendant, 
the  manager  of  the  road,  directed  his  servants  to  collect  them, 
and  put  them  in  a  safe  place.  They  put  them  in  tba  plaintiff's 
barn-yard,  in  his  absence  and  without  his  leave;  b.iton  his  re- 
turn h»>  did  not  object,  but  assisted  in  feeding  the  n,  and  also 
in  taking  them  away  for  reshipment,  and  rendered  a  Idil  for 
food,  services,  and  damage  to  grass.  The  swine  were  diseased, 
and  infected  the  plaintiff's  swine,  but  neither  he  nor  the  de- 
fendant knew  of  the  disease.  Held,  ihi\t  the  defendant,  iiaving 
acted  witiiii-i  )iis  authority,  was  not  liable:  Hawks  v.  Li)r,[  ,  139 
Mass.  205;  52  Am.  Rep.  702. 

§1394.  Selling  Diseased  Animals.  —  The  sale  of  dis- 
eased animals  has  been  held  not  to  be  unlawful;  and  al- 
though the  seller  knew  at  the  time  that  the  animals  were 

I  Hite  V.  Blandford,  45  111,  9.  '•'  Bradford  v.  Floyd,  80  Mo.  207. 


§1394 


ANIMALS. 


2520 


infected,  and  did  not  disclose  it  to  the  buyer,  yet  he  is 
not  liabi-^  for  injuries  occasioned  by  the  spread  of  the 
disease  among  the  animals  of  the  purchaser;  "for  the 
maxini  of  caveat  emptor  applies  to  such  a  case." '  It 
■svould  seem  that  there  are  decisions  of  authority  wliich 
hold  the  seller  to  a  liability  in  such  a  case;'^  and  cer- 
tainly where  the  seller  has  been  guilty  of  any  fraud  or 
misrepresentation,  he  is  liable.' 

Illustrations.  —  A  bought  a  cow  of  B  on  the  assurance  of 
the  latter  that  he  would  warrant  her,  and  that  she  had  come 
off  his  father's  farm.  It  proved  to  be  a  foreign  cow,  and  a  few 
days  after  the  purcJias',  she  fell  ill,  and  died,  of  what  proved 
to  he  the  cattle-plague.  Five  other  cows  which  had  been  in 
''.e  same  shed  were  attacked  the  same  week,  and  eventually  A 
lost  them  as  well.  The  symptoms  in  all  the  cases  were  alike. 
Held,  I  hat  as  A  was  induced  to  buy  the  cow  through  B's  mis- 
representation, the  latter  was  answerable  for  the  consequences 
which  ensued  by  her  coming  in  contact  with  other  cattle:  Mid- 
Ictt  v.  Mason,  L.'K.  1  Com.  P.  559;  14  Week.  Rep.  898;  14  L.T., 
N.  S.,  558. 


'  1  Tliompson  on  Negligence,  p. 
207,  see.  '22;  citing  Hill  v.  Balls,  2 
Hurl.  &  N.  299.  The  seller  does  not 
iiiipliediy  represent  that  they  are  not, 
BO  far  as  he  knows,  infected  with  a 
contagious  disease,  and  is  not  liable 
in  iiu  action  for  false  representation  at 
the  suit  of  a  person  wiio  lias  purchased 
such  aiiimali  and  consequently  suf- 
fered loss:  Ward  v.  Hobbs,  26  Week. 
Kep.  101 ;  reversing  the  judgmentof  the 


queen's  bench  division,  25  Week.  Rep. 
585;  20  L.  T.,  N.  S.,  511;  46  L.  J.  Q. 
B.  Div.  473;  L.  R.  2  Q.  B  \)i\. 
331. 

2  Jeffrey  v.  Bigelow,  13  Wenil.  518; 
28  Am.  Dec.  476;  Ilito  v.  Blanatord, 
45111.  9;  Peutou  v.  Murduck,  22  L.  T., 
N.  S.,  371. 

»  MuUett  V.  Mason,  L.  R.  1  Com.  P. 
559;  FiUtz  v.  Wycoff,  25  Ind.  321,  Sec 
'poat,  title  Contracts. 


2520 

uyer,  yet  he  is 
spread  of  the 
aser;  "for  the 
a  case." '  It 
ithority  which 
ise;*^  aud  cer- 
i  any  fraud  or 


he  assurance  of 
t  she  had  codig 
cow,  and  a  few 
of  what  proved 
ih  had  been  in 
d  eventually  A 
ases  were  alike. 
irough  B's  mis- 
e  consequences 
ler  cattle:  Mul- 
).  898;  14L.T., 


ion,  25  Week.  Rep. 
1.,  511;  46  L.  J.  Q. 
R.   2    Q.   B    iJiv. 

)w,  13  Weinl.  518; 
Hito  V.  lilauilforcl, 
Murduck,  22L.  T., 

a,  L.  R.  1  Com.  P. 
f,  25  Iiid.  321,  Sec 


2521 


§  1395. 
§  1396. 
§  1397, 
§  1398. 
§  1399. 
§1400. 
§  1401. 
§  1402. 
§  1403. 
§  I'^'M. 
§  1405. 
§  140G. 
§  1407. 
§  1408. 
§1409. 
§  1410. 
§1411. 
§  1412. 
§  1413. 
§  1414. 
§  1415. 
§  1416. 
§  1417. 
§  1418. 


INJURIES   TO   ANIMALS   BY   RAILROADS.         8  1396 


CHAPTER  LXXV. 

INJURIES  TO  ANIMALS  BY  RAILROADS.' 

Duty  to  fence  railroad  — At  common  law. 
By  contract. 

Duty  as  to  cattle  on  track  —  Slackening  speed. 
Ringing  bell  and  sounding  whistle. 

Evideuco  of  negligence  — Presumption —Burden  of  proof. 

Duty  to  feuce  by  statute  —  In  general. 

Who  and  what  within  statutory  protection. 

At  what  places  fences  not  required. 

In  cities,  towns,  and  villages. 

Highway  crossings  and  highways. 

Public  places. 

What  fence  sufficient. 

Degree  of  care  in  maintenance  of  fence  • 

Private  crossings. 

Cattle-guards. 

Release  of  duty  to  fence. 

Contributory  negligence  —  As  to  fences. 

As  to  permitting  cattle  to  run  at  largo. 

What  kinds  of  injuries  to  cattle  are  within  statute. 

Injuries  to  railroad. 

Law  and  fact. 

Pleading. 

Burden  of  proof  —  Evidence  of  negligence. 

Measure  of  damages. 


-Notice  of  defects. 


§  1395.    Duty  to  Pence  Railroad— At  Common  Law.— 

There  is  no  duty  resting  upon  railroads  to  fence  their 
tracks,  in  the  absence  of  a  statute  requiring  it  to  be  done; 
but  it  is  held  that  a  failure  to  fence  increases  the  care 
required  of  the  railroad  as  to  stock,  and  hence  to  this 
extent  is  relevant  on  the  question  of  negligence." 

§  1396.     By  Contract.— Where  the  railroad  has  agreed 
to  fence  its  line  through  certain  land,  a  failure  to  do  so 

.„IJ^^  *°  injuries  to  animals  in  their    Kerwhacker  v.  R.  R.  Co.,  3  Ohio  St 
carriage,  sec  post,  Title  Bailments.  185;  62  Am.  Dec,  240;  Gonna     «  R 

-iim^^f-^^'r'k  ^-  ]\  ^^";^'-  P'^"^'''     ^-  Co-  26  Mo.  441;  72  Am.  Dec.  220; 

yiiia  etc.  R.  R.  Co.  v.  Orr,  43  Miss.  279;    72  Am.  Dec.  698.    See  ante,  sec.  1391. 


§1397 


ANIMALS. 


2522 


by  which  cattle  get  on  the  track  and  are  killed  will  render 
it  liable,  in  the  absence  of  contributory  negligence  by  the 
owner/  In  some  states  an  obligation  to  fence  the  track 
v.'ill  be  implied,  if  in  the  condemnation  of  the  right  of 
way  the  award  of  damages  was  made  on  the  understand- 
ing tliat  the  company  was  to  fence  both  sides  of  the  track. 
On  a  failure  to  do  so,  the  company  cannot  impute  negli- 
gence  to  the  owner  of  cattle  straying  upon  the  roadway 
through  the  wai  .  of  such  fence.'^  In  other  states  tlio 
grant  of  the  right  of  way  by  the  plaintiff  over  his  farm 
implies  no  obligation  on  his  part  to  fence  the  railroad 
track,  nor  does  the  acceptance  of  the  grant  on  the  part 
of  the  railroad  company.' 

§1397.  Duty  as  to  Cattle  on  Track  —  Slackening 
Speed. — AVhere  by  checking  the  speed  of  the  train, 
animals  on  the  track  could  escape,  it  is  negligence  on  the 
part  of  the  railroad  servants  not  to  do  so.'*  But  the  rights 
of  passengers  are  superior  to  those  of  the  owners  of  tres- 
passing cattle,  and  the  courts  do  not  require  the  former 
to  be  endangered  for  the  purpose  of  protecting  the  latter.^ 
The  question  is,  whether,  when  the  stock  is  discovered  on 


1  Fernow  -.  U.  R.  Co.,  22  Iowa,  528; 
Joliot  etc.  K.  ii.  (  o.  r.  Jones,  20  111. 
222;  Drake  v.  IL.  R.  Co.,  51  Pa.  St. 

^  Quiiuby  r.  11.  R.  Co.,  23  Vt.  388; 
Trow  r.  11.  R.  Co..  24  Vt.  488;  58  Am. 
Dee.  I'.M.  Ami  Heo  In  re  Rensselaer 
R.  R.  Co.,  4  Puii^i'.  553. 

^  Louisville  etc.  11.  R.  Co.  v.  Milton, 
14  li.  Moil.  75;  58  Am.  Dec.  647; 
Louisville  itc.  R.  R.  Co.  IK  Ballard,  2 
Mot.  (Ky  .  177;  Imlianapolisetc.  R.  II. 
Co.  c.  Bi-.  wuciilKiig,  32  Ind.  200.  See 
Canii)1)el    ■■.  R.  R.  Co.,  50  Conn.   128. 

*  Clii(.-.i;o  etc.  R.  R.  Co.  i\  Barrie, 
55  111.  227:  Rock  ford  etc.  R.  R.  Co.  v. 
Liun,  07  111.  110;  Illinois  etc.  R.  R. 
Co.  V.  Wren.  43  111.  78;  Rockford  etc. 
E.  R.  Co.  r.  Ratf.Tty.  73  111.  58;  La- 
piae  r.  R.  R.  Co..  20  La.  Ann.  158; 
Awock  V.  R.  R.  L'^.,  6  Jones,  232: 
Jones   V.   R.  R.  Co.,  70  N.  C.   626; 


Page  V.  R.  R.  Co.,  71  N.  C.  2':2; 
Paris  etc.  R.  R.  (A>.  r.  Mulliuo,  (Jii  111. 
520;  Toledo  etc.  R.  R.  Co.  r.  Mdiin- 
nis,  71  111.  347;  Searlcs  v.  II.  U.  to., 
35  Iowa,  490;  Toledo  etc.  R.  R.  Co.  v, 
Milligan,  52  Iiid.  oO!];  Reeves  )•.  R, 
R.  Co..  30  Pa.  St. 454;  72  Atu.  Dec.  713; 
Jolnisoa  V.  R.  R.  Co.,  25  \V.  Va.  570; 
that  reversing  au  engine  isliiirtfid  to 
its  niatiiinery  is  no  o.kcuso:  Eist  Ten- 
nessee etc.  R.  R.  Co.  V.  Selcer,  7  Lea, 
557. 

*  Smith  V.  R.  R.  Co.,  34  Iowa,  500; 
Louisville  etc.  R.  R.  Co.  r.  Rallanl,  2 
Met.  (Ky.)  177;  Darling  r.  R.  R.  Co., 
121  Mass.  118;  Eiimes  v.  R.  R.  Co.,  98 
Ma=.s.  500;  96  Am.  Dec.  070;  May- 
nard  v.  R.  R.  Co.,  115  M;i-s.  458;  Jo 
Am.  Rep.  119;  McDonn.,11  ;•.  11.  R, 
Co.,  il5  Mass.  504;  Central  U.  R. 
Co.  V.  Lawrence,  13  Ohio  St.  GO;  82 
Am.  Dec.  434. 


.2522 

led  will  render 
;ligonco  by  the 
snce  the  track 
f  the  right  of 
le  iinderstand- 
3s  of  the  track. 

impute  nogli- 
m  the  roadway 
her  states  the 

over  his  farm 
;e  the  railroad 
nt  on  the  part 


t  —  Slackening 

of    the   train, 

gligence  on  the 

But  the  rights 

ovvucrs  of  trcs- 

Liire  the  former 

ting  the  latter.^ 

s  discovered  on 

Co..  71  N.  C.  •2-:'2; 
:o.  V.  Mullhis,  Gt)  111. 
R.  11.  Co.  ('.  -McCin- 
<eark's  c.  11.  K.  Co., 
ifilo  etc.  R.  11.  Co.  V. 
V)'o:  ReuviiS  r.  R. 
4r)4;  72  Am.  Dec.  713; 
Co.,  '25  W.  Va.  .")70; 
1  t!UL;lnu  is  luu'tful  to 
10  txciixo:  K'lst  Ten- 
Co.  V.  SulcLT,  7  Lea, 

I.  Co.,  34  Iowa,  oOG; 

R.  <.'o.  V.  Ballavil,  '2 
)arUiig  r.  R.  K.  Co., 
lilies  V.  R.  K.  Co.,  93 
in.  Dec.  07li;  May 
.,  115  Mii-.s.  4r)8;  15 
McDonnell  r.  R.  R. 
5C4;   Ceiilial  U.  R. 

13  Ohio  St.  CO;  82 


2523 


INJURIES   TO   ANIMALS    BY    RAILROADS.  §  1397 


the  track,  the  company  could,  without  imperiling  the 
persons  or  property  intrusted  to  it  for  transportation, 
avoid  injury  to  the  stock.  If  so,  the  company  is  charge, 
able  with  negligence.*  It  is  negligence  to  run  a  (rain  on 
a  straight  track  in  the  night-time  at  sucli  a  s[)ood  that 
the  train  cannot  be  stopped  in  the  distance  at  which  the 
engineer  can  see  cattle  or  other  obtruclions  on  the  track 
by  tlie  aid  of  a  head-light.^  Where  tliero  is  less  danger 
to  the  train  and  its  contents  from  a  collision  witli  stock 
on  the  track  while  running  at  a  high  rate  of  speed  than 
at  a  slower  rate,  it  is  the  duty  of  the  engineer,  upon  com- 
ing in  sight  of  the  aniirmls,if  it  is  not  possible  to  stop 
the  train  before  coming  up  with  them,  to  increase  the 
rate  of  speed,  notwithstanding  the  escape  of  the  animals 
may  thereby  be  rendered  more  difficult.^  It  is  not  neces- 
sary that  the  engineer  on  seeing  animals  on  the  track 
should  check  the  speed,  where  he  reasonably  believes  that 
to  blow  the  whistle  will  be  sufficient,  or  that  they  will 
leave  the  track  in  time;*  or  where  the  attempt  to  stop 
would  be  useless.'*  Whether  the  train  should  have  been 
c'necked  or  stopi>ed  is  usually  a  question  of  fact  depending 
on  the  circumstances  of  the  case.^  It  is  negligence  not 
to  keep  a  proper  lookout  for  animals  on  the  track,'  and 
though  a  railroad  is  fenced,  it  is  liable  for  willfully 
killing  animals  by  chasing  them  on  the  track  without 
attempting  to  stop  the  train.* 


'  Wallace  v.  R.  R.  Co.,  74  Mo.  594. 

2  Mciiiphia  etc.  R.  R.  Co.  v.  Lyon, 
62  Ala.  71. 

^  Owens  V.  R.  R.  Co.,  58  Mo.  387; 
Bemis  r.  R.  R.  Co.,  42  Vt.  375;  1 
Am.  Rep.  339;  Louisville  etc.  R.  R. 
Co.  V.  Milton,  14  B.  Mon.  75;  58  Am. 
Dee.  G47;  Louisville  etc.  R.  R.  Co.  v. 
Ballard,  2  Mot.  (Ky.)  177. 

*  Little  Rook  etc.  R.  R.  Co.  v. 
Trotter,  .37  Ark.  593;  Hot  Springs 
etc.  R.  R.  Co.  I'.  Newman,  30  Ai-k. 
607;  Wabash  etc.  R.  B.  Co.  v.  Krough, 
13  111.  App.  431. 


*  Alabama  etc.  R.  R.  Co.  v.  Chap- 
man,  80  Ala.  615;  Hawker  v.  R.  R. 
Co.,  15  W.  Va.  628;  36  Am.  Rep.  825; 
Chicago  etc.  R.  R.  Co.  ?•.  .Jones,  59 
Miss.  465;  East  Tennessee  etc.  R.  R. 
Co.  V.  Bayliss,  77  Ala.  4t9;  .W  Am. 
Rep.  69. 

fi  Mobile  etc.  R.  R.  Co.  r.  Holt,  G2 
Miss.  170;  Wilson  v.  R.  R.  Co.,  90 
N.  C.  69. 

'  Snowden  v.  R.  R.  Co.,  95  N.  C. 
93. 

8  New  Albany  etc.  R.  R,  Ca  v.  Mc- 
NaJiiara,  11  Xud.  543. 


1398 


ANIMALS. 


25S 


iLLUSTRATiONg.  — Seveml  cattle  were  crowded  on  a  railrot 
track  in  plain  view  of  the  engineer  for  one  hundred  rods,  ai 
he  made  no  cfibrt  to  stop  the  train,  and  the  cattle  were  injure 
Held,  that  the  company  was  liable:  Lawson  v.  R.  R.  Co., 
Iowa,  672.     A  cow,  driven  from  the  track  by  the  whistle,  aft 
running  along  by  a  fence  parallel  to  the  track,  attempted 
cross  and  was  struck  by  the  train.     Held,  a  question  for  tl 
jury  whether  defendant  was  guilty  of  negligence  in  not  slackc 
ing  speed  after  the  cow  was  driven  off  the  track:  Mobile  etc. 
R.  Co.  V.  Holt,  62  Miss.  170. 

§  1398.  Ringing  Bell  and  Sounding  Whistle.  —  AVhe 
ringing  the  bell  or  sounding  the  whistle  would  lia^ 
driven  the  animals  from  the  track,  or  enabled  those  i 
charge  of  them  to  get  them  out  of  danger,  a  failure 
ring  such  bell  or  sound  such  whistle  is  evidence  of  ueg] 
geuce.'  But  where  the  giving  of  signals  would  Inv 
been  unavailing  to  prevent  the  injury,  failing  to  gi^ 
them  is  not  evidence  of  negligence.^  Where  statutes 
quire  that  the  engineer,  upon  approaching  crossings,  st 
tions,  etc.,  shall  sound  the  steam-whistle  and  ring  the  b( 
and  that,  on  perceiving  any  obstacle  on  the  road,  ho  slui 
use  all  means  in  his  power  known  to  skillful  ..nginoers  i 
order  to  stop  the  train,  the  failure  to  do  so  raises,  in  sou: 
states,  a  presumption  of  negligence;^  in  others  it  is  concli 
sive;*  in  some  it  is  not  negligence,  except  when  tlie  injui 
is  attributable  to  the  failure  to  follow  the  statute.''"' 


'  Thompson  on  Negligence,  507; 
Aycock  V.  R.  II.  Co.,  U  Jones,  232; 
Jones  V.  R.  R.  Co.,  70  N.  C.  C2G;  Page 
V.  R.  R.  Co.,  71  N.  C.  222;  Illinois 
etc.  R.  R.  Co.  V.  Phelps,  29  111.  447; 
Illinoia  etc.  R.  R.  Co.  v.  Gootlwin,  80 
111.  117;  Toledo  etc.  R.  R.  Co.  v.  Fur- 
gussoii,  42  111.  449;  Intliauapolia  etc. 
II.  R.  Co.  V.  Hamilton,  44  Ind.  76; 
Saarles  v.  R.  R.  Co.,  35  Iowa,  490; 
Owens  V.  R.  R.  Co.,  58  Mo.  3S7;  Bomis 
V.  R.  R.  Co.,  42  Vt.  375;  1  Am.  Rep. 
3.39;  Illinois  etc.  R.  R.  Co.  v.  Peyton, 
7(i  111.  340;  Pennsylvania  R.  R.  Co.  v. 
Krick,  47  Ind.  3G9;  Goodwin  v.  R.  R. 
Co.,  75  Mo.  73. 

■^  Fhittes  V.  R.  R.  Co.,  35  Iowa,  191; 
Plaster  v.  R.  R.  Co.,  35  Iowa,  449;  II- 
liuois  etc.  R.  R.  Co.  v.  Flielps,  29 


111.    447;     Oilman  etc.  R.  R.  Co. 
Spencer,  70  111.  192;  Smith  v.  R.  1 
Co.,  19  Mo.  App.  120. 

3  Mobile  etc.  R.  R.  Co.  v.  William 
53  Ala.  595;  Mobile  etc.  R.  K.  ('o. 
Malone,  40  Ala.  391;  Central  IJraiK 
R.  R.  Co.  V.  Phillipi,  20  Kan.  0;  Owe 
V.  R.  R.  Co.,  58  Mo.  387;  Hov,cii.ste 
V.  R.  R.  Co.,  55  Mo.  33;  Nashville  et 
R.  R.  Co.  V.  Thomas,  5  Hoisk.  20 
Memphis  etc.  R.  R.  Co.  r.  Sinitli, 
Heisk.  800.  Where  a  statute  ruq\iir 
locomotives  at  crossing  to  ring  a  b( 
"  or  "  sound  a  whistle,  both  iiodl  ii 
be  done:  Cathcartr.  R.  R.  Co.,  I'J.M 
App.  113. 

*  Nashville  etc.  R.  R.  Co.  v.  Thoma 
5  Heisk.  262. 

*  Roikford  etc.  R,  R.   Co.  v.  Linj 


2524 

irowded  on  a  railroad 
le  hundred  rods,  and 
lie  cattle  were  injured. 
vson  V.  R-  R-  (^0.,  57 
z  by  the  whistlo,  after 
le  track,  attempted  to 
M,  a  question  for  the 
ligence  in  not  slacken- 
e  track:  Mobile  etc.  R. 


,g  Whistle.  —  Where 
whistle  would    have 
or  enabled  those  in 
danger,  a  failure  to 
is  evidence  of  negli- 
signals    would  huvo 
jury,  failing  to  give 
Where  statutes  re- 
aching crossings,  sta- 
istle  and  ring  the  boll, 
I  on  the  road,  ho  shall 
3  skillful  v'igineersiii 
do  so  raises,  in  some 
in  others  it  is  conclu- 
s:cept  when  the  injur) 

,v  the  statute/' 

Cxilman  etc.  11.  R.  Co.   ?•. 
7(5  111.  192;  Smith  <•.  U.  K. 
llo.  App.  1-20. 

le  etc.  11.  R.  Co.  V.  V,  illiains, 
[95;  Mobile  etc.  K.  K.  Co.  v. 
10  Ala.  391;  Central  I'.nuich 
V.  PhilUpi,  20  Kan.  0;  Owens 
,30.,  58  Mo.  3S7;  Hov.oustein 
Pc  55  Mo.  33;  NasUvilloetc. 
i  'v.  Thomas,  5  Hoisk.  '26'2; 
,  etc.  R.  R.  Co.  V.  Smith,  D 
[)0.  Where  a  statute  rtHiuiros 
Ic's  at  crossing  to  ring  a  holl 
[mid  a  whistle,  hoth  necl  not 
ICathcartv.  R.  R.Co.,  I'JMo. 

(villectcR.R.  Co.  ('.Thomas, 
l[!rdetc.  R.R.   Co.  r.  Linu- 


2525 


INJURIES   TO   AXI.MALS    DY    RAILROADS.         §  1400 


§  1399.  Evidence  of  Negligence  —  Presumption  — 
Burden  of  Proof.  —  The  fact  of  animals  being  injured 
on  the  track  by  the  railroad  does  not  alone,  it  is  licld  in 
a  number  of  cases,  raise  a  presumption  of  negligence.' 
In  others,  it  is  held  that  when  the  animals  are  not  wrong- 
fully on  the  track,  proof  of  an  injury  to  them  by  the  rail- 
road raises  an  inference  of  negligence,  and  puts  the  burden 
on  the  defendant  to  show  that  it  was  not  in  fault.^  And 
iji  some  states  by  statute  the  fact  of  killing  or  injuring 
stock  is  prima  facie  evidence  of  negligence,  and  places 
upon  the  defendant  the  burden  of  showing  by  positive 
evidence  that  duo  diligence  and  care  were  used  to  prevent 
the  injury.' 

§  1400.    Duty  to  Pence— By  Statute— In  General.— Iq 

a  number  of  states  statutes  have  been  enacted  requiring 
railroad  companies  to  fence  their  tracks  against  live-stock, 
and  rendering  them  absolutely  liable,  without  regard  to 
negligence,  for  injuries  caused  by  their  failing  to  do  so.* 


67  111.  109;  Chicago  etc.  R.  R.  Co.^  c. 
Hendor.soii,  (50  111.  494;  Great  Wes- 
tern R.  R.  Co.  V.  Geddis,  33  111.  304; 
lUinois  etc.  R.  R.  Co.  c.  Phelps,  29 
111.  447;  Imlianapolis  etc.  R.  R.  Co.  v. 
Blackmau,  G3  111.  117;  Chicago  etc.  R. 
R.  Co.  jj.McDauiels,  03  111.  122;  Quincy 
etc.  R.  R.  Co.  V.  Wellhocuer,  72  111. 
60;  Chicago  etc.  R.  R.  Co.  v.  Elmore, 
67  111.  171);  Illinois  etc.  R.  R.  Co.  v. 
Gillis,  08  111.  317;  Stoneman  v.  R.  R. 
Co.,  53  Mo.  503. 

'  ilobile  etc.  R.  R.  Co.  v.  Hudson, 
50  Miss.  572;  Chicago  etc.  R.  R.  Co. 
r.  Patchin,  10  111.  198;  Bcthje  v.  R. 
R.  Co.,  20  Tex.  004;  New  Orleans  etc. 
R.  R.  Co.  V.  Enochs,  42  Miss.  003; 
Great  Western  R.  R.  Co.  v.  Mortli- 
land,  .30  111.  451;  Sclmeir  v.  R.  R.  Co., 
40  Iowa,  337;  Indianapolis  etc.  R.  R. 
Co.  V.  Means,  14  Ind.  30;  Walsh  v. 
R.  R.  Co.,  8  Nev.  Ill;  Grand  Rapids 
etc.  II.  11.  Co.  ji.  Judson,  35  Mich. 
507;  Brown  v.  R.  R.  Co.,  33  Mo.  .309; 
Lyndsay  v.  R.  R.  Co.,  27  Vt.  043; 
Scott  V.  R.  R.  Co.,  4  Jones,  432; 
Savannah  etc.  R.  R.  Co.  v.  Gcigcr, 
21  Fla.  609;  58  Am.  Rep.  097. 


«  Wliito  V.  R.  R.  Co.,  30  N.  H.  207; 
Danncr  i\  R.  R.  Co.,  4  Rich.  330; 
55  Am.  Dec.  078;  Murray  v.  R.  R. 
Co.,  10  Rich.  227;  70  Am.  Dec.  219; 
Roof  V.  R.  R.  Co.,  4  S.  0.  01;  Galpin 
0.  R.  R.  Co.,  19  Wis.  C04;  McCoy  v. 
R.  R.  Co.,  40  Cal.  5.32;  0  Am.  Rep. 
023;  Smith  v.  R.  R.  Co.,  35  N.  H. 
357;  Jones  w.  R.  R.  Co.,  20  S.  C.  249. 

"Clark  V.  R.  R.  Co.,  Winst.  109; 
Pippen  V.  R.  R.  Co.,  75  N.  C.  54; 
Battle  V.  R.  R.  Co.,  GO  N.  C.  343; 
Home  V.  R.  R.  Co.,  1  Cold.  72; 
Georgia  etc.  R.  R.  Co.  v.  Munroe,  49 
Ga.  373;  Mobile  etc.  R.  R.  Co.  v.  WU- 
liams,  53  Ala.  595. 

*  Gorman  v.  R.  R.  Co.,  26  Mo.  441; 
72  Am.  Dec.  220;  St.  I.ouis  etc.  R.  R. 
Co.  V.  Linder,  39  111.  433;  89  Am.  Dec. 
319;  Burlington  etc.  R.  R.  Co.  v. 
Briiikham,  14  Neb.  70.  And  if  by 
reason  of  its  failure  to  do  so,  pasture- 
land  is  rendered  unlit  for  use  as  such, 
tlio  owner  may  recover  his  loss  from 
the  company:  Leggett  v.  R.  R.  Co.,  41 
Hun,  80.  As  to  the  constitutionality 
of  such  statutes,  see  ■post,  Division  V., 
Coustitutioaal  Law, 


§  1400 


ANIMALS. 


2526 


Such  slut utos  arc  held  in  a  number  of  cases  to  be  remedial 
in  tlicir  nature,  and  therefore  to  be  liberally  construed.' 
The  statute  is  not  repealed  or  nullified  by  a  subsequent 
law  prohibiting  domestic  animals  from  running  at  large, 
whether  local  or  general  in  its  nature,^  nor  by  a  subse- 
quent statute  permitting  a  land-owner  along  the  line  of 
the  railway  to  erect  the  fence  in  case  of  the  company's 
failure  so  to  do,  and  to  charge  the  latter  with  the  value  of 
it,'^  nor  from  the  fact  that  adjoining  land-owners  have 
erected  a  fence  along  the  line.*  The  liability  exists  dur- 
ing the  time  of  construction  of  the  road,  and  does  not  for 
the  first  time  attach  when  the  road  is  operated.'^  It  in- 
cludes a  lessee  of  a  road."  The  term  "agents,"  in  the 
statute,  includes  the  fireman  and  engineer  of  the  train;^ 
mules  and  asses  come  under  the  term,  "cattle  an>l 
horses. '"*  Cattle  "running  at  large"  will  include  cattle 
pastured  on  the  close  of  the  owner  which  was  surrounded 
by  a  defective  fence,  and  which  escaped  from  there  to  (he 
railroad  track,  and  were  injured.^  When  the  railroad  is 
liable,  "unless  the  injury  complained  of  is  occasioned  by 
the  willful  act  of  the  owner  or  his  agent,"  merely  permit- 


'  Ohio  etc.  R.  R.  Co.  v.  Brubaker. 
47  III.  4(iu';  Ri.ckfurd  etc.  R.  R.  Co.  v. 
Hcliiii,  (i.-j  111.  '.^ul^,  Tracy  v.  R.  R.  Co., 
oS  N.  Y.  4:3,".;  !)S  Am.  Doo.  54.  Contra, 
holding  tI;om  lo  I)c  i>eiial,  aiidtobecon- 
stnied  strictly:  Indianapolis  etc.  R.  R. 
Co.  *'.  Kinnoy,  8  lud.  402;  Bay  City 
R.  R.  Co.  i:  Austin,  21  Mich.  JWO. 
The  Wisconsin  statute  contained  no 
provision  tliat  a  railroad  company 
failing  in  its  duty  to  fence  its  track 
bhould  he  liable  lor  injuries  to  stock 
resulting  from  such  failure.  It  was 
hold,  however,  tliat  the  effect  of  the 
statute  was  tlio  same  as  if  it  had  con- 
tained such  a  provi'jion,  on  the  "(gen- 
eral principle  tiiat  wliere  the  law 
imposes  upon  any  person  a  specitic 
»luty  for  the  protoclion  or  benefit  of 
others,  if  he  neuleets  to  perform  that 
duty,  he  is  lial)le  to  those  for  whose 
benelit  it  was  imposed  for  any  dam- 
ages sustaiued  by  reason  of  uuch  ne- 


glect": McCall  V.  Chamberlain,  1,3 
Wis.  G39. 

^  Ewing  ?'.  R.  R.  Co.,  72  111.  25; 
Ohio  etc.  R.  R.  Co.  v.  Jones,  (J:i  111. 
472;  Chicago  etc.  R.  R.  Co.  v.  Harris, 
54  III.  52S. 

3  Toledo  etc.  R.  R.  Co.  v.  Pence,  OS 
111.  528. 

*  Louisville  etc.  R.  R.  Co.  v.  ^Vllite, 
94  Ind.  257. 

•^  (lardner  v.  Smith,  7  Mich.  410;  74 
Am.  Dec.  722;  .Silver  r.  R.  11.  Co.,  78 
Mo.  .")2S;  47  Am.  Itcp.  118. 

«  Tracy  v.  R.  R.  Co.,  ."S  N.  Y.  43,3; 
98  Am.  Dec.  54. 

"  .Suydam  v.  Moore,  8  Barb.  358; 
R.  R.  Co.  V.  Hunt,  59  Vt.  294. 

*' Ohio  etc.  R.  R.  Co.  r.  Ihniliakor, 
47  111.  4G2;  Toledo  etc.  R.  11.  Co.  e. 
Cole,  50  III.  185. 

9  liinman  v.  R.  R.  Co.,  28  Iowa,  401; 
Fritz  V.  R.  R.  Co.,  34  I<>wa,  3,!7:  liaiu- 
mond  V,  R.  R.  Co.,  4i>  Iowa,  108. 


2527 


INJURIES    TO   ANIMALS    BY   RAILROAD?.. 


§  1401 


Chamberlain,    13 


itli,  7  Midi.  410;  74 
vor  *■.  11.  Iv.  Co.,  78 
;cp.  lis. 
Co.,  ;;S  N.  Y.  433; 

ooro,    8   Ilul).  358; 
>'.)  Vt.  ':.'.)[. 
Co.   r.  liru^akor, 
)  ulc.  K.  J  I.  Co.  y. 


ting  the  stock  to  run  at  large  is  not  a  willful  act  within 
the  statute.'  A  railroad  is  not  bound  to  provido  places 
for  stock  to  leave  its  track.^ 

§  1401.  Who  and  What  within  the  Statutory  Protec- 
tion.—  The  statutes  embrace  animals  iiijurod  })y  th(>  fail- 
ure to  fence,  even  though  not  owned  by  an  adjojniu"- 
proprietor;*  and  passengers  injured  by  a  oollision  with 
cattle  on  the  tra«k  through  a  neglect  to  properly  fen  en/  and 
injuries  to  crops  caused  by  the  cattle  escai)ing  through 
the  defective  fence  into  another's  field.''  But  thev  do  not 
extend  to  an  injury  to  an  employee  of  the  railroad/'  or  to 
children  trespassing  on  the  track.'  Compliauce  with  tho 
statute  does  not  relieve  the  company  from  liability  for 


»  Stewart  r.  R.  R.  Co.,  32  Iowa,  5GL 
2  Oilman  v.  R.  R.  Co.,  02  Iowa,  299. 
^  Indianapolis  etc.  R.  R.  Co.  v. 
Townacnil,  10  Ind.  38;  Hart  v.  R.  R. 
Co.,  12  Ind.  478;  Now  Albany  etc. 
R.  R.  Co.  w.  Tilcon,  12  Ind.  3;  74  Am. 
Loc.  105;  Indianapoli^i  etc.  R.  R.  Co.  v, 
M'^Kinnoy,  24  Jnd.  •J'SS;  Gilmoro  v. 
R.  R.  Co.,  GO  .Mj.  237;  Rhodes  v. 
R.  R.  Co.,  5  Hun,  344;  MoCall  v. 
Chamberlain,  13  Wis.  G40;  Marietta 
etc.  R.  R.  Co.  r.  Stephen  son,  24  Ohio 
St.  48;  Corwin  r.  R.  II.  Co.,  13  N.  Y. 
42;  overruling'  Rrooks  i\  R.  R.  Co.,  13 
Barb.  591;  Browne  v.  R.  R.  Co.,  12 
Gray,  55;  71  Am.  Dec.  736;  Russell  v. 
Hanley,  20  Iowa,  219;  8S  Am.  Dee. 
535.  In  other  cxia  it  has  bjcn  held 
that  tiie  statute  applies  only  to  such 
cattle  as  stray  directly  I'rom  the  land 
of  tha  owners  to  the  railroad  track, 
and  that  if  they  are  trespassing  on  tiio 
abutting  premises,  and  escape  from 
there  to  tlio  track  and  are  injured,  the 
railroad  is  not  lialile:  Walsh  v.  R.  11. 
Co.,  8  Nev.  Ill;  McDonnell  v.  R.  R. 
Co.,  115  Mass.  5G4;  ^Nlayuard  v. 
R.  R.  Co.,  115  Mass.  458;  Eamcs  v. 
R.  R.  Co.,  98  Mass.  500;  90  Am.  Dec. 
670;  Pittsburg  etc.  R.  R.  Co.  v. 
Mcthven,  21  Ohio  St.  586;  Jackson  v. 
R.  R.  Co.,  25  Vt.  150;  00  Am.  Dec. 
240:  Beniis  v.  R.  R.  Co.,  42  Vt.  375; 
1  Ain.  Hop.  339;  Cornwall  v.  R.  R. 
Co.,  28  N.  H.  101;  Woolsou  v.  R.  R. 


Co.,  19  N.  H.  207;  Chapin  r.  R.  R. 
Co.,  39  N.  11.  53;  75  Am.  Dec.  207. 

*  Blair  v.  R.  R.  Co.,  20  Wis.  254, 
the  court  saying:  "Tlie  statute  waa 
not  enacted  for  tiie  paltry  purpose  of 
determining  who  sliould  boar  tlie 
pecuniary  burden  of  building  and 
maintaining  division  fences,  as  be- 
tween i-ailroad  compauii.'s  and  tlio  ;id- 
joining  proprietors  of  land;  nor  to  lix 
the  li;ibdity  of  such  coiiipauies  for 
injuries  occ;isioned  to  douic-tio  ani- 
mals before  such  fence  should  be 
built;  but  the  great  object  of  its  en- 
actment was  the  increased  safety  of 
tho  lives  and  lindis  of  passenser.s 
which  would  be  secured  iiy  a  strict 
observance  of  its  provisions.'" 

»  llolden  v.  R.  R.  Co.,  .".O  Vt.  298; 
Comings  v.  R.  R.  Co.,  48  Mo.  512; 
Smith  V.  R.  R.  {'o,,  38  Iowa,  518; 
Donald  V.  R.  R.  Co.,  44  Iowa,  157; 


Dean 


R.  R.    Co.,   22   N.  11.  310; 


Trice  y.  R.  R.  Co..  49  Mo.  440.  See, 
CQ)if.ra,  Clark  v.  R.  R.  Co.,  3(i  Mo.  203, 
decided  under  an  early  statute  of  that 
state  since  amended. 

«  Langlois r.  R.  R.  Co.,  19  Barb.  .364. 

'  FitzgenUd  v.  R.  R.  Co.,  29  Minn. 
336;  43' Am.  Rep.  212;  Walkeuliauer 
V.  R.  R.  Co.,  3  McCrary,  553.  t'oiitni, 
Schmidt  V.  R.  R.  Co.,  23  ^Vi.-  '<'o; 
99  Aui.  Dec.  158;  Hayes  /•.  R.  Iv 
111  U.  S.  22S;  Keyser  v.  R.  R.  Co., 
50  Mich.  559;  56  Am.  Rep.  405. 


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§§  1402,  1403 


ANIMALS. 


2528 


injuries  resulting  from  negligence  or  misconduct  in  other 
ways.* 

§  1402.  At  What  Places  Fence  not  Required. — At  cer- 
tain places,  such  as  where  highways  cross  it,  and  where  it 
runs  along  a  street,  or  at  the  stations  of  the  line,  the  rail- 
road is  not  obliged  to  fence.  The  statutes  of  the  states 
in  some  instances  specially  except  these  places,  but  in  the 
absence  of  statute,  the  courts  make  a  similar  exception.' 
A  railroad  need  not  fence  where  it  would  liinder  the  free 
use  of  its  property,  or  incommode  individuals  in  the  use 
of  their  property,  or  interfere  with  the  rights  of  the  pub- 
lic;^ as,  fo;  oj.-MTiple,  at  a  place  used  for  switching  and 
loading  and  ur,  )ading  freight,  where  a  fence  would  seri- 
ously interfera  with  '>ts  business  or  the  safety  of  its  em- 
ployees;* or  v/iiero  the  fence  v/ould  exclude  land-owners 
from  their  priviue  passage  to  a  highway.'  But  the  com- 
pany has  the  burden  of  showing  that  the  road  could  not 
be  fenced  at  the  place.*  Where  injuries  occur  at  places 
where  the  railroad  companies  may  not  legally  fence  their 
tracks,  the  rights  and  liabilities  of  the  parties  are  to  be 
determined  upon  the  general  principles  of  the  law  of  neg- 
ligence, without  regard  to  the  statute  concerning  fences.' 

§  1403.    In  Cities,  Towns,  and  Villages. — In  Missouri, 
railroads  are  not  required  to  fence  their  tracks  within  the 

'  New  Albany  R.  R.  Co.  v.  Mc- 
Namara,  1 1  Ind.  543;  Ind.  etc.  R.  R. 
Co.  V.  McBrown,  46  Iiul.  229;  Mc- 
Dowell V.  R.  R,  Co.,  37  Barb.  196. 

''  Iiuliarapolis  etc.  R.  R.  Co.  v.  Oea- 
tel,  20  Ind.  231;  Louisville  etc.  R.  R. 
Co.  V.  Francis,  58  Ind.  389;  Rogers  v. 
R.  R.  Co.,  26  Iowa,  558;  Davis  v.  R. 
R.  Co.,  26  Iowa,  549;  Durand  v.  R.  R. 
Co.,  26  Iowa,  559;  ladianapolis  etc. 
R.  R.  Co.  V.  Caudle,  CO  Ind.  112; 
Verhusen  v.  R.  R.  Co.,  53  Wis.  687; 
Ind.  etc.  R.  R.  Co.  v.  Leak,  8d  Ind. 
596. 

'  Cincinnati  etc.  R,  R.  Co.  v.  Wood, 
82  Ind.  593. 

*  Evansvillo  etc.  R.  R.  Co.  v.  Willis, 
93  lad.  507. 


»  Croy  V.  R.  R.  Co.,  97  Ind.  126. 

*  Louisville  etc.  R.  R.  Co.  v.  Clark, 
94  Ind.  111. 

'  Thompson  on  Negligence,  520,  cit- 
ing numerous  cases;  and  see  Missouri 
etc.  R.  R.  Co.  V.  Wilson,  28  Kan.  637. 
The  Missouri  statute  raises  an  infer- 
ence of  negligence  when  the  stock  is  in- 
jured at  a  place  where  the  law  docs 
not  require  the  road  to  be  fenced, 
which  must  be  rebutted  by  the  defend- 
ant: Edwards  v.  R.  R.  Co.,  66  Mo. 
571;  Eiliott  v.  R.  R.  Co.,  60  Mo.  683; 
Iba  V.  R.  R.  Co.,  45  Mo.  470;  Ells  v. 
R.  R.  Co.,  48  Mo.  231.  But  this  rule 
does  not  apply  to  places  where  it  is 
unlawful  for  the  company  to  maintain 
fences:  ElUottt.  B.  R.  Co.,  66  Mo.  683. 


2528 
uct  in  other 

ed. — At  cer- 
and  where  it 
ine,  the  rail- 
of  the  states 
;s,  but  in  the 
r  exception.' 
nder  the  free 
Is  in  the  use 
3  of  the  pub- 
iritching  and 
e  would  seri- 
ty  of  its  em- 
land-owners 
But  the  com- 
ad  could  not 
3ur  at  places 
y  fence  their 
ies  are  to  be 
e  law  of  ueg- 
ning  fences.' 

•  In  Missouri, 
ks  within  the 

..,  97  Ind.  126. 
.  R.  Co.  V.  Clark, 

igligence,  520,  cit- 
and  see  Missouri 
Ison,  28  Kan.  037. 
;e  raises  an.  infer- 
len  the  stock  is  in- 
lero  the  law  does 
ad  to  be  fenced, 
ted  by  the  defend- 
,  R.  Co.,  66  Mo. 
,.  Co.,  66  Mo.  683; 
;  Mo.  470;  Ells  v. 
31.  But  this  rule 
places  where  it  ia 
(ipany  to  maintain 
J.  Co.,  66  Mo.  683. 


2529 


INJURIES   TO   ANIMALS   BY   RAILROADS, 


•  1405 


I 


limits  of  incorporated  cities  and  towns;*  in  Illinois  tho 
same  exception  is  made  as  to  cities  and  iucorporated 
towns  and  villages;  and  in  Iowa,  there  is  an  implied  ex- 
ception in  the  operation  of  tho  statute  as  to  that  portion 
of  u  railroad  track  which  lies  within  tho  limits  of  cities 
and  villages.''  "Any  small  assemblage  of  houses  for  dwell- 
ing or  business,  or  both,  in  tho  country,  constitutes  a 
village,  whether  they  are  situated  upon  regularly  laid  out 
streets  and  alleys,  or  not."^  The  presumption  is  that  tho 
houses  compose  a  village;  if  an  animal  is  killed  beyond 
the  houses,  the  presumption  is  that  it  is  killed  beyond 
the  village;  if  the  town  extends  beyond  the  houses,  tho 
defendant  should  show  the  fact.*  A  railroad  is  not  ex- 
cused from  fencing  by  the  mere  abuttal  of  its  right  of 
way  on  a  town  plat,  no  town,  streets,  or  alleys  crossing 
such  right  of  way." 

§  1404.  Highway  Crossings  and  Highways.— For  ob- 
vious reasons,  the  railroad  is  not  obliged  to  fence  at  places 
where  its  track  either  is  crossed  by  or  runs  along  a  T'ub- 
lic  highway."  The  statutory  rule  that  railroads  need  not 
fence  at  public  crossings  applies  both  to  highways  de  facto 
and  de  jure.''  But  where  tlie  highways  run  by  tho  side  of 
the  railroad  track,  the  latter  should  be  fenced.' 

§  1405.  Public  Places.  —  A  railroad  is  not  obliged  to 
fence  its  road  at  a  public  place  used  as  such  by  tho  pub- 


1  Edwards  v.  R.  R.  Co.,  66  Mo.  571; 
Cousins  V.  R.  R.  Co.,  66  Mo.  572;  El- 
liott V.  R.  R.  Co.,  66  Mo.  683;  Meyer 
V.  R.  R.  Co.,  35  Mo.  352. 

» Davis  V.  R.  R.  Co.,  26  Iowa,  549; 
Rogers  v.  R.  R.  Co.,  26  Iowa,  558; 
Blanford  v.  R.  R.  Co.,  71  Iowa,  310; 
60  Am.  Rep.  795. 

•  Illinois  etc.  R.  R.  Co.  v.  Williams, 
27  111.  49;  Toledo  etc.  R.  R.  Co.  v. 
Spangler,  71  111.  568;  Chicago  etc. 
R.  K.  Co.  V.  Rice,  71  111.  567. 

*  Ohio  etc.  R.  R.  Co.  v.  Irvin,  27  HI. 
178. 

169 


»Kirkland  v.  R.  R.  Co.,  82  Mo. 
466. 

"  Louisville  etc.  R.  R.  Co.  ?'.  Fran- 
cis, 58  Ind.  389;  Soward  v.  R.  R.  Co., 
30  Iowa,  551 ;  Atchison  etc.  R.  R,  Co. 
V.  Griffis,  28  Kan.  539;  Sullivan  ?'. 
R.  R.  Co.,  72  Mo.  195. 

^Luckie  v.  R.  R.  Co.,  76  Mo. 
639. 

*  Indianapolis  etc.  R.  R.  Co.  v.  Mc- 
Kinney,  24  Ind.  283;  Indianapolis  etc. 
R.  R.  Co.  V.  Guard,  24  Ind.  222;  87 
Am.  Dec.  327;  Jeffersonvilleetc.  R.  R. 
Co.  v.  Sweeney,.  32  Ind.  430. 


§  140G 


ANIMALS. 


2530 


lie'  In  some  cases  it  is  held  that  if  the  place  is  in  law  a 
public  place,  the  company  need  not  fence,  even  though  the 
place  is  not  in  public  use.'^  In  others  it  is  held  that 
although  it  be  in  law  a  public  place,  still,  if  for  any 
reason  it  be  not  used,  and  is  not  likely  to  be  used,  as  such, 
by  the  public,  the  road  must  be  fenced.^  Where  a  high- 
way has  not  been  in  a  condition  for  use  by  the  public, 
and  has  not  been  used  for  thirty-six  years,  the  presump- 
tion of  its  abandonment  is  justified,  the  right  to  its  full 
use  by  the  owner  is  restored,  and  the  duty  to  fence  is 
imposed  on  a  railroad  comi)any  using  a  portion  of  it  for 
its  track.*  But  a  mere  non-user  of  a  highway  by  the 
traveling  public  during  a  period  of  two  years  is  not  sulH- 
cient  to  raise  a  presumption  of  abandonment,  and  does 
not  impose  the  duty  of  fencing  upon  the  railroad.^  A 
railroad  is  not  obliged  to  fence  its  depot-grounds."  It  is 
not  bound  to  fence  its  track,  where  the  effect  would  be  to 
cut  it  off  from  the  use  of  some  of  its  own  property,  though 
not  in  present  use, —  as  machine-shops,  wood-sheds,  etc.^ 


§1406.    What  Fence  Sufllcient.— A  fence  sufficient 
under  the  statutes  is  one  which  will  keep  stock  out.^    Thus 


>  Ewing  V.  R.  R.  Co.,  72  111.  25; 
Cleveland  etc.  R.  R.  Co.  v.  Crossley, 
36  Ind.  371;  Tracy  v.  R.  R.  Co.,  38 
N.  Y.  433;  98  Am.  Dec.  54;  Cleveland 
etc.  R.  R.  Co.  V.  McConnell,  26  Ohio 
St.  57;  Flint  etc.  R.  R.  Co.  v.  Lull,  28 
Mich.  510;  Pittsburgh  etc.  R.  R.  Co. 
V.  Ehrhart,  36  Ind.  119;  Pittsburgh 
etc.  R.  R.  Co.  V.  Bowyer,  45  lud.  496; 
Ohio  etc.  R.  R.  Co.  v,  Rowland,  50 
lad.  349;  Lloyd  v.  R.  R.  Co.,  49  Mo. 
199;  Morris  v.  R.  R.  Co.,  58  Mo,  78; 
Swearingcu  v.  R.  R.  Co.,  64  Mo.  73; 
Robertson  v.  R.  R.  Co.,  64  Mo.  412; 
Brace  v.  R.  R.  Co.,  27  N.  Y.  269;  Mc- 
Kinley  v.  R.  R.  Co.,  47  Iowa,  76. 

■'  Meyer  v.  R.  R.  Co.,  35  Mo.  352; 
Elliott  V.  R.  R.  Co.,  66  Mo.  683. 

=*  Whitewater  R.  R.  v.  Quick,  30 
Ind.  384:  Toledo  etc.  R.  R.  Co.  v. 
Cary,  37  *nd.  172;  Toledo  etc.  R.  R. 
Co.  V.  Howell,  38  Ind.  447. 


*  Jeffersonville  etc.  R.  R.  v.  O'Con- 
nor, 37  Ind.  96. 

*  Ind.  etc.  R.  R.  Co.  v.  Gapen,  10 
Ind.  292. 

«  Davis  V.  R.  R.  Co.,  26  Iowa,  r)5fl; 
Smith  V.  R.  R.  Co.,  34  Iowa,  500; 
Galena  etc.  R.  R.  Co.  v.  Griffin,  81  111. 
303;  Indianapolis  etc.  R.  K.  Co.  /•. 
Oestel,  20  Ind.  231;  Cleveland  v.  U.  K. 
Co.,  35  Iowa,  220;  Plaster  v.  R.  K. 
Co.,  35  Iowa,  449;  Latty  v.  R.  R.  Co., 
38  Iowa,  250;  Lloyd  v.  R.  R.  Co.,  4!) 
Mo.  199;  Swearingen  v.  R.  R.  Co.,  04 
Mo.  73;  Robertson  v.  R.  R.  Co.,  04 
Mo.  412;  Packard  v.  R.  R.  Co.,  SO 
Iowa,  474. 

'  Indianapolis  etc.  R.  R.  Co.  ?'.  Ooa- 
tel,  20  Ind.  231;  Jeffersonville  etc. 
R.  R.  Co.  V.  Beatty,  36  Ind.  15. 

**  Ilalversoa  v.  R.  R.  Co.,  32  Miuu. 
88. 


2530 

e  is  in  law  a 
11  though  the 
is  held   that 
,  if  for  any 
ised,  as  such, 
rhere  a  high- 
ly the  public, 
the  prcsump- 
rht  to  its  full 
,y  to  fence  is 
L-tion  of  it  for 
ghway  by  the 
irs  is  not  sulli- 
lent,  and  does 
s  railroad.'^     A 
;rounds."    It  is 
3ct  would  be  to 
roperty,  though 
■ood-sheds,  etc7 

ence   sufficient 
lockout.'    Thus 

etc.  R.  R-  V.  O'Con- 

|r.  Co.  v.  Gapen,  10 

L  Co.,  26  Iowa,  550; 

Co.,   34  I"wa,   50(5; 

»  Co.  V.  Griffin,  .^1  HI. 

Is  etc.  R.   R-   ^':-   '•• 
n;Clevelauil  y.  K.  U. 

20;  Plaster  i".  R-  1^- 
3;  Latty  v.  R.  R-  <-'"•. 

Ln  ..  R.  H.  Co.,  04 
Ird  V.  R.  R-  ^"^  '^*' 

etc.R.R-Co.?'.Oe3- 
ll;   JeffersomUlo  etc. 
Itty,  3lJlnd.  15. 
*  R.  R.  Co.,  32  Miun. 


2531 


INJURIES   TO    ANIMALS   BY    RAILROADS. 


§  1407 


a  wire  fence  will  do.  A  bluff,  a  liedge,  a  trench,  a  wall,  a 
trestle,  or  the  like,  may  be  of  equal  security  with  the 
statutory  defined  lawful  fence;  and  if  so  found  in  fact,  it 
would,  under  the  statute,  be  a  lawful  fence.^  Where  the 
statutory  fence  will  not  keep  out  hogs,  a  railroad  is  not 
obliged  to  erect  a  fence  which  will  be  safe  against  hogs." 

§  1407.    Care  Required  in  Maintenance  of  Fences— 
Notice  of  Defects.  —  In  the  case  of  a  defect  in  a  fence, 
the  company  must  have  notice  of  it,  or  such  a  time  must 
elapse  as  to  raise  the  presumption  of  notice,  and  what 
such  a  time  must  be  depends  upon  the  circumstances  of 
the  particular  case.^     It  is  not  bound  to  keep  a  patrol  at 
night  along  its  road  to  see  that  the  fence  is  not  broken 
down.*     The  company  is  not  bound  to  see  a  defect  the 
moment  it  occurs;  it  is  entitled  to  have  a  reasonable  time 
to  find  it  out.'     If  the  defect  is  in  the  original  construc- 
tion of  the  fence,  this  charges  the  defendant  with  notice 
from  the  beginning.^     Thus  the  doctrine  that  a  reason- 
able time  must  elapse  after  a  gate  or  a  fence  gets  ouc  of 
repair  in  which  a   ra' "road  company  may  discover  its 
condition  does  not  apply  where  the  gate  never  had  such 
a  fastening  as  the  law  required.^     And  it  is  no  excuse 
that  it  was  erected  by  another  person  by  contract  with  the 
company.*     But  where  by  contract  with  the  railroad  the 
fence  is  to  be  erected  by  the  plaintiff,  and  he  fails  in  his 
performance  of  it,  he  cannot  recover  for  an  injury  to  his 
stock  resulting  from  a  defect  consequent  upon  such  fail- 


»  Billiard  v.  R.  R.  Co.,  37  Iowa,  442. 

'^  AtohisoQ  etc.  R.  R.  Co.  v.  Yates, 
21  Kan.  G13. 

3  Tdlodo  etc.  R.  R.  Co.  v.  Cohen,  44 
Iii.l.  444;  Cleveland  etc.  R.  R.  Co.  v. 
Brown,  45  Ind.  91;  McDowell  t\  R.  R. 
('...,  87  Barb.  190;  Perry  v.  R.  R.  Co., 
3(3  iowa,  102. 

*  Illinois  etc.  R.  R.  Co.  v.  Dicker- 
ton,  27  111.  55;  79  Am.  Dec.  394. 

^"  (I'hieai^o  etc.  R.  R.  Co.  v.  Harris, 
JU.  528;  Bell  v.  R.  R.  Co.,  64  Iowa. 


321;  Brown  v.  R.  R.  Co.,  21  Wis.  37; 
91  Am.  Dec.  450;  Toledo  etc.  11.  R. 
Co.  V.  Elder,  45  Mich.  329;  Fritz  v. 
R.  R.  Co.,  01  Iowa,  323;  Young  w. 
R.  R.  Co.,  82  Mo.  427. 

"  Hammonil  ■».  R.  R.  Co.,  43  Iowa, 
108. 

"  Duncan  v.  R.  R.  Co.,  91  Mo.  08. 

**  Ctill  c.  R.  R.  Co.,  27  Ohio  St.  240; 
Now  Albany  etc.  R.  R.  Co.  r.  Mai- 
den, 12  Ind.  10;  Shepard  v.  R.  R.  Co., 
35  N.  Y.  041. 


§  1408 


ANIMALS. 


2532 


lire.  He  is  guilty  of  contributory  negligence.  But  if  he 
originally  erected  the  fence  under  such  a  contract,  and  it 
was  accepted  by  the  company  and  paid  for,  the  company 
cannot  afterwards  plead  a  defective  construction  as  con- 
tributory negligence.  By  the  acceptance  they  assume 
responsibility  for  the  defect.*  In  the  building  and  main- 
taining of  fences,  railroad  companies  are  bound  to  exer- 
cise only  ordinary  care  and  diligence."  They  are  not 
insurers  of  the  safety  of  their  fences.'  The  railroad  is 
not  liable  for  an  injury  caused  to  the  fence  by  the  vrcng- 
ful  act  or  negligence  of  third  persons,  except  where  after 
notice  it  is  guilty  of  neglect  in  not  repairing  it.*  That 
the  road  was  not  fenced  at  other  places  will  not  make 
the  company  liable  for  an  injury  at  the  place  where  it  is 
fenced,  unless  it  was  the  result  of  such  f  ilure." 


§  1408.  Private  Crossings. — In  some  states  the  stat- 
utes impose  on  the  railroads  the  duty  of  erecting  gates  or 
bars  at  private  farm-crossings."  And  in  the  absence  of 
statute,  it  has  been  held  in  some  cases  that  the  railroad 
is  under  the  same  obligation  to  erect  and  maintain  gates 
at  private  crossings  as  it  is  to  erect  and  keep  up  fences/ 
In  New  York  the  duty  of  keeping  these  gates  closed 
and  bars  up  is  upon  the  land-owner  for  whose  conve- 
nience  they  were  erected,  and  who  uses  them.*  A  failure 
in  this  duty  on  his  part  will  bar,  not  only  his  action,  but 
that  of  a  third  person  whose  cattle  stray  upon  his  land 


1  Norris  v.  R.  R.  Co.,  39  Me.  274; 
C3  Am.  Dec.  621. 

'^  Lemmon  v,  R.  R.  Co.,  32  Iowa, 
151;  Henilerson  v.  R.  R.  Co.,  43  Iowa, 
620;  Edtes  v.  R.  R.  Co.,  63  Me.  309; 
Stephenson  v.  R.  R.  Co.  33  Mich.  323; 
Case  V.  R.  R.  Co.,  75  Mo.  66S;  Bennet 
V.  K.  R.  Co.,  61  Iowa,  355. 

*  Tliompson  on  Negligence,  524. 

*  Chicago  etc.  R.  R.  Co.  v.  Barrie, 
55  111.  227;  Henderson  v.  R.  R.  Co., 
43  Iowa,  620;  Toledo  etc.  R.  R.  Co.  v. 
Fowler,  22  Ind.  316;  Russell  v.  Han- 
ley,  20  Iowa,  219;  89  Am.  Dec.  535; 


Perry  v.  R.  R.  Co.,  36  Iowa,  102;  To- 
ledo etc.  R.  R.  Co.  V.  Milligaii,  5vl  Iiul. 
505;  Hodge  v.  R.  R.  Co.,  27  Hun,  31M; 
Clardy  v.  R.  R.  Co.,  73  Mo.  570. 

»  Brooks  V.  R.  R.  Co.,  13  Barl).  594. 

'Thompson  on  Negligence,  525. 

'  Russell  V.  Hanley,  20  Iowa.  219; 
89  Am.  Dec.  535;  Hammoml  v.  R.  R. 
Co.,  43  Iowa,  169;  Henderson  t\  K. 
R.  Co.,  43  Iowa,  620;  Perry  v.  R.  R. 
Co.,  36  Iowa,  102;  Estes  v.  R.  R.  Co., 
63  Me.  309;  Cleveland  etc.  R.  K.  Co. 
V.  Swift,  42  Ind.  119. 

8  Spinner  v.  R.  R.  Co.,  2  Hun,  426. 


2532 


ii533 


INJURIES  TO  ANIMALS   BY   ILVILROADS.         §  1401) 


ice.    But  if  he 
jontract,  and  it 
r,  the  company 
^ruction  as  con- 
e   they  assume 
ding  and  main- 
I  bound  to  exer- 
They  are   not 
The  railroad  is 
;e  by  the  vroiig- 
sept  where  after 
liring  it."    That 
3  will  not  make 
dace  where  it  is 
ilure.» 

9  states  the  stat- 
erecting  gates  or 
a  the  absence  of 
,hat  the  railroad 
a  maintain  gates 
keep  up  fencesJ 
lese  gates  closed 
or  whose  conve- 
,hem.*  A  failure 
ly  his  action,  but 
ly  upon  his  laud 

Co.,  36  Iowa,  102;  To- 
go. V.  Milligan,  5->  Iiu  . 
R.  R.Co.,27  Hun,  31)4; 
,.  Co.,  73  Mo.  57G. 
i.  R.  Co.,  13Barh.oW. 
on  Negligence,  Ti-Jo. 
Hanley,  20  Iowa.  210; 
,35;  Hammoatl  v.  U.  «• 
109;  Henderson  v.  K. 
va,  620;  Perry  v.  U.  H. 
102;  Estea  v.  K-  i<,.  t  f>., 
lleveland  etc.  R.  K-  Co. 

R.  R.  Co.,  2  Hun,  426. 


and  are  injured  in  consequence  of  the  defect.*    But  if  the 
gate  is  used  by  the  company  or  by  its  servants  in  and  about 
the  prosecution  of  theii  business,  and  is  by  them  care- 
lessly  left  open,  the  company  will  be  liable  for  an  injury 
ensuing  in  consequence  thereof.^     In  New  York  a  rail- 
road is  by  statute  permitted   to  put  up  gates  at   farm- 
crossings  for  the  convenience  of  the  adjoining  farmer, 
and  not  for  the  use  of  itself  or  others;  and  when  such  a 
gate  is  used  by  itself  or  its  customers  with  its  permission, 
it  .s  required  to  keep  the  gate  in  such  a  state  as  will  turn 
away  orderly  cattle,  and  if  it  permits,  invites,  or  shares  in 
such  use  as,  to  its  knowledge  or  notice,  results  in  the  gate 
not  serving  the  end  of  a  fence,  it  fails  in  its  duty.     Where 
it  has  knowledge  that  such  gate  is  customarily  loft  open, 
or  where,  from  the  manner  of  the  use  of  the  same,  it  has 
notice  that  such  an  event  is  likely  to  happen,  it  is  in  statu- 
tory default  if  it  does  not  see  to  the  closing  of  it  when  the 
use  of  it  is  over  for  tho  day  or  a  shorter  period.     There- 
fore, where  plaintiff's  cattle  at  night  strayed  through  a 
gate  in  a  railroad  fenco  which  was,  to  the  knowledge  of 
its  servants,  used  by  the  customers  of  the  railroad  com- 
pany in  doing  business  with  it,  and  was  frequently  left 
open  at  night,  whereby  the  cattle  were  run  into  by  the 
company's  trains  and  killed,  it  was  held  that  the  company 
was  guilty  of  such  default  as  to  render  it  liable  for  the 
loss  of  the  cattle.^ 

§  1409.  Cattle-guards. — The  railroad  is  also  obliged 
to  erect  cattle-guards  at  public  places,  where  the  road 
cannot  be  continuously  fenced.  Many  of  the  statutes, 
indeed,  provide  for  their  erection  and  maintenance,  but 
without  such  provision  the  duty  will  be  implied.*    Such 


1  Brooks  V.  R.  R.  Co.,  13  Barb.  594. 

2  Spinner  v.  R.  R.  Co.,  2  Hun,  426. 
'Spinner  v.  R.  R.  Co.,  67  N.  Y. 

153. 
*  Thompson  on  Negligence,  526;  In- 


dianapolis etc.  R.  R.  Co.  V.  Irish,  '20 
Ind.  2G8;  Union  Pac.  R.  R.  Co.  r.  Har- 
ris, 28  Kan.  206;  Randan  v.  R.  R.  Co., 
69  Iowa,  527;  Wabash  etc.  R.  R.  Co. 
V.  Tretts,  96  Ind.  450. 


§  1410 


ANIMALS. 


2534 


cattle-guards  must  bo  sufficient  to  keep  cattle  out,  and  a 
failure  to  maintain  them  in  this  condition  is  negligence.' 
A  statute  requiring  railroads  to  maintain  cattle-guards  at 
road  crossings  applies  as  well  to  streets  which  are  crossed 
by  railroads  in  villages  as  to  country  highways;  and  the 
fact  that  a  crossing  is  near  a  depot,  and  that  a  guard 
there  would  inconvenience  the  company,  does  not  re- 
lieve it  from  the  necessity  of  erecting  it.'^  A  railroad  is 
negligent  in  permitting  its  cattle-guards  to  remain  filled 
with  snow,  so  that  cattle  which  have  escaped  upon  a 
highway  without  their  owner's  negligence  may  pass  onto 
the  track  and  bo  liable  to  be  killed.^ 


§  1410.  Release  of  Duty  to  Pence.  —  It  is  lawful  for 
the  adjoining  owner  to  release  by  contract  the  railroad 
from  its  obligation  to  maintain  a  fence  along  his  land.^ 
Where  the  contract  is  by  a  covenant  in  a  deed  to  the 
right  of  way,  it  will  bind  the  grantee,  lessee,  tenant,  etc., 
of  the  covenantor,^  but  only  in  the  same  way  and  to  the 
same  extent  that  the  covenantor  is  bound."  But  such  a 
contract  cannot  affect  the  right  of  a  stranger  whose  stock 
trespassing  on  the  land  of  the  adjoining  owner  gets  on 


•  Pitts,  etc.  R.  R.  Co.  v.  Eby,  55 
Iml.  oG7;  Dunnigan  v.  R.  R.  Co.,  18 
Wis.  28;  86  Am.  Dec.  741;  New  Al- 
bany etc.  R.  R.  Co.  ?'.  Pace,  1.3  lud. 
411;  Missouri  Pacific  R.  R.  Co.  i\ 
Mansoii,  31  Kan.  337;  Missouri  Pacific 
R.  R.  Co.  V.  Lynch,  31  Kau.  531.  A 
negligent  construction  of  a  cattle- 
chute  is  not  excused  by  the  fact  that 
it  was  similar  to  those  "on  well-regii- 
lateil  railrrads  generally":  Allen  v. 
R.  R.  Co.,  04  Iowa,  94. 

■'  Tracy  v.  R.  R.  Co.,  38  N.  Y.  433; 
98  Am.  Doc.  55. 

"  Dunnigan  v.  R.  R.  Co.,  IS  Wis.  28; 
8(3  Am.  Deo.  741.  Contra,  Bliiis  v.  R.  R. 
Co.,  .34  Minn.  57;  57  Am.  Rep.  36. 

♦  Pittsburgh  etc.  R.  R.  Co.  v. 
Smith,  26  Ohio  St.  124;  Indianapolis 
etc.  R.  R.  Co.  V.  Petty,  25  lud.  413; 
Duffy  V.  R.  R.  Co.,  2  Hilt.  496;  Easter 
V.  R.  R.  Co.,  14  Ohio  St.  48;  Ciuciu- 


nati  etc.  R.  R.  Co.  v.  Watcrson,  4 
Ohio  St.  424;  Tower  v.  R.  R.  C...  'J 
R.  I.  404;  Shepard  v.  R.  R.  Co.,  ;!:. 
iV.  Y.  641;  EUsw.  R.  R.  Co.,  4>S  Mo. 
231;  Terre  Haute  etc.  R.  R.  ('.>.  ,•. 
Smith,  16  lud.  102;  Lawton  r.  R.  U. 
Co.,  8  Cush.  2.30;  ,'>4  Am.  Duo.  7.-);i. 
Contra,  New  Albany  etc.  R.  R.  Co.  r. 
Maiden,  12  Ind.  10. 

*  Duffy  V.  R.  R.  Co.,  2  Hilt.  40(1; 
Easter  r.  R.  R.  Co.,  14  Oiiio  St.  4>S; 
Cincinn.xti  etc.  R.  R.  Co.  v.  Wiitcr- 
son,  4  Ohio  St.  424;  Tower  r.  K.  U. 
Co.,  2  R.  I.  404;  Iudianai)olis  cti'. 
R.  R.  Co.  V.  Petty,  25  In<l.  413. 

«  Shepard  r.  R.  R.  Co.,  3.")  N.  V. 
641.  A  verbal  contract  is  not  a  cov- 
enant running  with  the  l.iiul  which 
will  bind  the  maker's  lessee:  St. 
Louis  etc.  R.  R.  Co.  v.  Toihl,  30  Hi. 
409;  Wilder  v.  R.  R.  Co.,  65  Me.  -.m; 
20  Am.  Rep.  698. 


2531 


2535 


INJURIES  TO   ANIMAL8  BY   RAILROADS.         g  1410 


attle  out,  and  a 
I  is  negligence' 
cattle-guards  at 
lich  are  crossed 
uvays;  and  the 
d  that  a  guard 
Y,  does  not  re- 
A  railroad  is 
to  remain  filled 
3scaped  upon  n 
)  may  pass  onto 

It  is  lawful  for 
act  the  railroad 
along  his  kind.' 
1  a  deed  to  the 
isee,  tenant,  etc., 
)  way  and  to  the 
d.®  But  such  II 
ager  whose  stock 
g  owner  gets  on 

[I.  Co.  V.  Waterson,  -4 

Tower  v.  R.  H.  Co.,  '_' 

»aril  V.  R.   R.  t"<>-.  •'•'' 

iv.  R.  R.  Co.,4.SMn. 

ite  etc.    R.    R.  *>>•  '•• 

102;  Lawton  v.  R.  Iv. 

0;  f>4   Am.    IK'c.   T.")!!. 

Ibany  etc.  R.  R.  Co.  r. 

.  10. 

R.  Co.,  2  Hilt.  40ii; 

Co.,  14   Oliio  St.  4>S; 

R.  R.  Co.   V.  Wiitei- 

,  424;  Tower  r.  U.    li. 

104;    IuiUanai>'>liu  utt'. 

tty,  25Iu<l.  4i:i. 

R.    R.    Co.,   :<■'>  N.  \. 

contract  is  n«t  a  cov- 

with   the   laiul  wlii.li 

maker's  lesseo:     St. 

I.  Co.  V.  ToiUi,  :w  111- 
R.  R.  Co.,  05  Mo.  33:5; 
)8. 


the  track  through  the  failure  of  the  railroad  to  fence.'  A 
release  may  bo  implied  as  well  as  by  express  words.  Tho 
refusal  of  tho  land-owner  to  permit  the  company  to  erect 
bars  at  his  farm-crossing,  as  required  by  tho  statute,  is  an 
excuse  for  their  omission  to  build  tho  fence,  notwith- 
standing an  express  agreement  for  the  erection  of  gates.^ 
So  it  has  been  hekl  that  wliere  damages  wore  assessed 
and  jtaid  to  tho  land-owner  through  whose  promises  tho 
railroad  passed,  it  would  bo  presumed  tliat  the  expense  of 
building  and  maintaining  a  fence  along  the  lino  of  road 
was  included  in  the  damages;  and  if  the  land-owner's 
cattle  were  injured  in  consequence  of  defects  in  the  fence, 
either  before  or  after  the  passage  of  the  statute  requiring 
the  company  to  fence,  there  could  be  no  recovery.^  Tho 
burden  of  proving  an  averment  that  there  was  no  con- 
tract on  the  part  of  the  plaintiff  to  fence  th.e  track  is  not 
upon  the  plaintiff,  but  the  defendant  must  disprove  it.^ 

Illustrations. — A  lane  leading  from  tho  highway  to  tho 
plaintiff's  residence  crossed  the  railroad  track,  and  at  each  end 
of  the  lane  were  gates,  which,  with  the  inclosing  fences,  were 
maintained  by  the  plaintiff.  Held,  in  an  action  by  him  for  kill- 
ing his  cow  at  the  crossing,  that  the  company  were  justified  in 
assuming  that  he  preferred  the  open  crossing;  and  that  he  could 
not  recover:  Tyson  v.  R.  R.  Co.,  48  Iowa,  207.  A  was  B's 
tenant  of  a  farm  adjoining  a  railroad.  B  contracted  with  tho 
railroad  company  to  build  and  maintain  a  good  and  sulliciont 
fence  between  the  farm  and  the  track.  A  knew  of  the  contract, 
and  repaired  this  fence,  and  kept  stock  upon  tho  farm.  A 
horse  hroke  through  the  fence,  and  was  killed  by  a  train,  as 
were  two  mules  which  followed  him.  The  fence  was  strong 
enough  to  keep  in  ordinary  stock.  Held,  that  A  had  no  ground 
of  action  against  the  company:  St.  Loni.'ietc.  R.  U.  Co.  v.  Wash- 
hnni,  97  111.  253.  By  agreement  hetween  the  owner  of  land 
through  which  a  railroad  passed  and  the  company,  the  owner 
became  bound  to  maintain  a  certain  fence,  which  the  company 
for  its  own  purposes  at  one  time  took  down  and  put  up  in  a 


>  Corwin  v.  R.  R.  Co.,  13  N.  Y.  40; 
Talmailge  v.  R.  R.  Co.,  Hi  Barb.  4<)3; 
Berry  r.  R.  R.  Co.,  05  Mo.  172.  Con- 
tra, Iiulianapolis  etc.  R.  R.  Co.  v, 
I'ctty,  25  lud.  413. 


•^Hnrd*'.  R.  R.  Co.,  25  Vt.  117. 
3  Johnson  r.  R.  R.  Co.,  19  Wis.  137; 
•  (ircat  West.  R.  R.  Co.  i<.  Bacou,  30 
111.  347j  83  Am.  Dec.  I'J'J. 


1411, 1412 


ANIMALS. 


253G 


diffcnnt  way,  to  which  the  owner  might  have  objected,  but  did 
not.  lie  afterwards  allowed  tlie  fence  to  get  out  of  repair,  and 
Ills  cattle  got  upon  the  track  and  were  killed.  Held,  that  ho 
could  not  iu!  heard  to  couiplain  that  the  company  failed  to  re- 
ptorethe  fence  to  its  original  condition:  Pittaburyh  etc.  Jx.  R.  Co. 
V.  Ilciddl,  'JS  Ohio  St.  GGG. 

§  1411.    Contributory  Negligence  —  As  to  Fences.  — 

Even  under  tlio  statutes  making  railroads  absolutely  liable 
for  injuries  to  animals  caused  by  t!:cir  failure  to  fence 
their  tracks,  the  contributory  negligence  of  the  owner  is 
a  good  defense.*  The  following  have  been  held  to  amount 
to  contributory  nogligenco  on  the  part  of  the  owner: 
Any  act  on  his  part  contributing  to  the  defect  in  the 
fence  or  permitting  the  cattle  to  escape;"  failing  to  notify 
the  railroad  of  a  defect  in  the  fence  known  to  him;''  fail- 
ing to  repair  a  division  fence  which  ho  is  under  a  legal 
duty  to  repair.* 

§  1412.  Contributory  Negligfence  —  As  to  Per.iitting 
Cattle  to  Run  at  Large.  —  In  some  cases  it  is  held  that 
there  is  no  obligation  en  the  part  of  the  company  to  fence 
against  cattlo  wrongfully  in  the  highway  or  an  adjoining 
close,  and  that  the  owner  of  such  cattlo  can  recover  noth- 
ing, under  the  statute,  for  their  injury  or  destruction  by 


■  Hance  v.  R.  R.  Co.,  26  N.  Y.  428; 
Miingcr  V.  R.  R.  Co.,  4  N.  Y.  .SoO;  53 
Am.  Dec.  384;  5  Deuio,  255;  Murray 
V.  R.  R.  Co.,  4Keycs,  274;  Pittsburgh 
etc.  R.  R.  Co.  V.  MuthvLU,  21  Ohio  St. 
58G;  Roclvforcl  etc.  R.  R.  Co.  v.  Irish, 
72  III.  405;  Browne  v.  R.  R.  Co.,  12 
Gray,  55;  71  Am.  Dec.  736;  Eames  v. 
R.R.  Co.,  OS  Mass.  560;  96  Am.  Dec. 
C70;Willia.iia  v.  R.  R.  Co.,  ulucl.  114; 
Imliaiiapolis  etc.  R.  R.  Co.  v.  Shimer, 

17  lad.  2t)5.  Contra,  Jefforsouvillo  etc. 
R.  R.  Co.  V.  Rods,  37  Inil.  549;  Mead 
V.  R.  R.  Co.,'52  Vt.  278. 

^  Toledo  etc.  R.  R.  Co.  v.  Thomas 

18  Ind.  215;  Indianapolis  etc.  R.  R. 
Co.  V.  I'utty,  25  Ind.  414;  Koutz  v.  R. 
R.  Co.,  54  Iml.  515;  Illinois  etc.  R.  R. 
Co.  V.  McKce,  43  111.  120;  Eames  v.  R. 
E.  Co.,  98  Mass.  560;  9C  Am.  Dec. 


676;  puffy  v.  R.  R.  Co.,  2  Hilt.  490; 
Illinois  etc.  R.  R.  Co.  v.  Arnold,  47 
111.  173;  Indianapolis  ect.  R.  R.  Co.  r. 
17  Ind.  295;  Hook  v.  R.  R.  Co.,  58 
Shinier,  N.  H.  251. 

^  Poler  V.  U.  R.  Co.,  16  N.  Y.  4715; 
Chicago  etc.  R.  R.  Co.  r.  Sierer,  liO 
III.  295;  Ciiicago  etc.  R.  R.  Co.  '■. 
Buck,  14  III.  App.  394.  Unless  tliu 
defect  was  in  the  original  coii.struction 
of  the  fence:  Hammond  ?».  R.  R.  Co., 
43  Iowa,  169.  But  to  fail  to  rcjiair  the 
fence  is  not  contributory  negligoncc: 
Tex<T:  etc.  R.  R.  Co.  v.  Young,  00 
Tjx.  201;  Cleveland  etc.  R.  R.  Co. 
V.  Scudder,  40  Ohio  St.  173;  Busby  v. 
R.  R.  Co.  81  Mo.  43. 

*  Sandusky  etc.  R.  R.  Co.  v.  Sloan, 
27  Ohio  St.  341. 


253G 

bjcctcd,  hut  (lid 
t  of  repair,  and 
Held,  that  iio 
my  faiJt'd  to  ro- 
•yh  etc.  A*.  A*.  Co. 


to  Fences.  — 

jsolut(3ly  liublo 
iluro  to  ibnco 
f  the  owner  is 
leld  to  amount 
of  the  owner: 
defect  in  the 
liling  to  notify 
I  to  him;''  fail- 
under  u  legal 


to  Per.iitting 

it  is  hold  that 

npany  to  fence 

an  adjoining 

recover  noth- 

Llestruction  by 

I.  Co.,  2  Hilt.  49G; 

Co.  V.   Arnold,  47 
is  Oct.  R.  11.  Ci>.  r. 

V,   R.   R.  Co.,  .")8 

Co.,   IG  N.  Y.  471!; 

Co.  r.  Sieror,  ilO 
etc.   R.  R.  Co.  '•, 

394.  Uuloss  the 
giual  ooiisti'uction 
loiul  r.  R.  R.  Co., 
(I  fail  to  roiiair  tho 
)utory  negligence: 
Co.  V.  Young,  GO 
ul  etc.  R.  R.  Co. 

St.  173;  Busby  v. 

I.  R.  Co.  V.  Sloan, 


2537 


INJURIES   TO   ANIMALS   DY   RAILROADS.         §  1412 


the  cars  of  tho  company.'  But  in  othern  the  rule  is,  that 
the  railroad  company  cannot  avoid  liability  for  injuries 
to  stock  in  consequence  of  their  fiiilure  to  comply  with 
tho  provisions  of  tho  statute,  on  the  ground  that  the  owner 
of  tho  stock  has  been  guilty  of  negligence  in  permitting 
it  to  stray  at  largo,  because  the  statute  impo.sos  a  public 
duty  which  is  superior  to  any  individual  interest.'^  A 
person  is  not  guilty  of  contributory  negligence  in  pastur- 
ing his  cattlo  on  his  own  field,  although  ho  is  awaro  of 
the  defective  condition  of  tho  fence  which  it  is  tho  duty 
of  the  company  to  maintain  between  it  and  tho  railroad 
track.  He  cannot  bo  deprived  of  tho  proper  use  of  bis 
property  by  tho  failure  of  the  railroad  company  to  per- 
form its  duty.^  But  this  applies  only  to  the  fence  which 
the  railroad  by  statute  is  bound  to  repair.  If  the  plain- 
tifl's  fence  is  burned  by  sparks  from  a  passing  engine, 
there  is  no  obligation  upon  the  railroad  company  to 
repair  tho  same.  If  tho  plaintiff's  horse  escapes  through 
tho  breach  thus  made,  and  is  killed,  tho  company  is  not 
liable  for  damages.     It  is  negligence  for  him  to  leave  the 

«  McDonnell  v.  R.  R.  Co.,  113  Mass. 
BG4;  Giles  v.  R.  R.  55  N.  H.  552: 
Mayberry  v.  R.  R.  Co.,  47  N.  H.  391; 
Chapin  v.  R.  R.  Co.,  .39  N.  H.  564;  75 
Am.  Dec.  237;  Towns  v.  R.  R.  Co.,  21 
N.  H.  .3G4;  Trow  v.  R.  R.  Co.,  24  Vt. 
488;  58  Am.  Dec.  191 ;  Wilder  v.  R. 
R.  Co.,  G5  Me.  333;  20  Am.  Rep.  G98; 
Woolsou  V.  R.  R.  Co.,  19  N.  H.  2G7; 
Perkins  v.  R.  R.  Co.,  29  Mo.  307;  50 
Am.  Dec.  589;  Jackson  v.  R.  R.  Co., 
25  Vt.  150;  CO  Am.  Dec.  24G;  Knight 
V.  R.  R.  Co.,  24  Ind.  402;  Wabash  etc. 
R.  R.  ('.  Nice,  99  Ind.  152. 

'  Corwiu  V.  R.  R.  Co.,  13  N.  Y.  42; 
Sheaf  V.  R.  R.  Co.,  2  Thomp.  &  C. 
388;  Fanning  v.  R.  R.  Co.,  2  Thomp. 
&  C.  585;  McDowell  v.  R.  R.  Co., 
37  Barb.  195;  Rhodes  v.  R.  R.  Co.,  5 
Hun,  344;  Duffy  v.  R.  R.  Co.,  2  Hilt. 
49G;  Munch  v.  R.  R.  Co.,  29  Barb. 
G47;  Cougdon  v.  R.  R.  Co.,  50  Vt.  370; 
48  Am.  Rep.  793;  Cressey  v.  R.  R. 
Co.,  59  N.  H.  504;  47  Am.  Rep.  227; 
B.  &  M.  R.  R.  Co.  V.  Webb,  18  Neb. 
215;  53  Am.  Rep.  809;  Chicago  etc. 


R.  R.  Co.  V.  Cross,  17  Wis.  428;  84  Am. 
Dec.  755;  Wilder  v.  R.  R.  Co.,  G5  Me. 
3.32;  22  Am.  Rep.  698;  Flint  etc.  R.  R. 
Co.  V.  Lull,  28  Mich.  510,  the  court 
saying:  "If  contributory  negligence 
could  constitute  a  defen.se,  the  purpose 
of  the  stiituto  might  be  iu  a  great 
measure,  if  not  wholly,  defeated;  for 
tho  mere  neglect  of  tlie  railroad  com- 
pany to  observe  the  directions  of  the 
statute  would  render  it  unsafe  for  the 
owner  of  beasts  to  suffer  them  to  Ihj 
at  large,  or  even  on  his  own  grounds 
m  the  vicinity  of  the  road;  so  that  if 
ho  did  what  but  for  tho  neglect  of  the 
company  it  would  be  entirely  safe  and 
proper  for  him  to  do,  the  very  neglect 
of  the  company  would  constitute  ita 
protection,  since  that  ucj,lect  alone 
rendered  the  conduct  of  the  plaintiff 
negligent. " 

»Shepard  v.   R.  R.   Co.,  35  N.  Y. 
644;  McCoy  v.  R.  R.  Co.,  40  Cal.  532; 

0  Am.  Rep.  623;  Rogers  v.  R.  R.  Co., 

1  Allen,  10. 


§1413 


ANIMALS. 


2538 


horso  ill  tho  pasture  thus  made  iusecuro.  Ho  rauy  rocovor 
in  an  action  for  damages  to  tho  fence,  but  lias  no  right 
to  abandon  the  rest  of  his  property,  and  ■•hargo  tlio  rail- 
road company  with  the  consequences.*  One  who,  know- 
ing that  a  severe  storm  on  Saturday  had  prostrated  fences, 
on  Monday  evening  turned  his  cattle  upon  un inclosed 
lands  without  inquiry  as  to  whether  the  railroad  fences 
abuttin.T  thereon  were  uninjured  was  guilty  of  such  con- 
tributory negligence  as  would  defeat  his  recovery  for 
injuries  received  by  such  cattle  on  tho  railroad  track.^ 

§  1413.  What  Kinds  of  Injuries  to  Gattle  are  within 
Statute. — Where  the  statute  gives  damages  where  tho 
animal  is  "  killed  or  injured  "  by  a  railroad  train,  it  seems 
that  the  injury  to  be  recovered  for  must  be  one  caused  by 
actual  contact  with  the  locomotive  or  cars.'  In  Iowa 
the  statute  gives  a  remedy  for  "  stock  injured  or  killed  by 
reason  of  the  want  of  such  fence,"  and  it  is  held  that  if 
the  stock  got  upon  the  track  through  a  defect  in  the 
fence,  and  injury  or  death  resulted  from  their  alarm  and 
attempts  to  escape,  the  company  is  liable.*  Tho  Kansas 
statute  makes  railroad  companies  liable  for  injuries  to 
stock  "  by  the  engines  or  cars  on  such  railroad,  or  in  any 
other  manner  in  operating  such  railroad."  This  is  held 
to  include  injuries  inflicted  in  removing  cattlo  (which 
came  upon  tho  track  through  a  defect  in  the  fence)  from 
a  bridge  in  which  they  had  become  entangled  upon  tho 
approach  of  a  train.* 

Illustrations.  —  By  a  gate  left  open  in  a  wire  fence  inclos- 
ing defendant's  track  plaintiff's  horses  escaped  onto  the  track, 
and,  becoming  frightened  by  a  train,  ran  against  the  fence 


I  Terry  v.  R.  R.  Co.,  22  Barb.  575. 

«  Carey  v.  R.  R.  Co.,  61  Wis.  71. 

3  LafiFcrty  v.  R.  R.  Co.,  44  Mo.  292; 
Moshier  r.  R.  R.  Co.,  8  Barb.  428;  In- 
dianapolis  etc.  R.  R.  Co.  v.  McBrowu, 
40  Ina.  229;  Peru  etc.  R.  R.  Co.  v. 
Hasket,  10  lud.  409;  71  Am  Dec.  335; 
Ohio  etc.  R.  R.  Co.  v.  Cole,  41  lad.  331; 


Louisville  etc.  R.  R.  Co.  r.  Smith, 
58  lud.  575;  Baltimore  etc.  R.  R.  Co. 
V.  Thomas,  60  Ind.  107;  Knight  c.  R. 
R.  Co.,  99  N.  Y.  25;  Siebert  v.  R.  R. 
Co.,  72  Mo.  565. 

*  Young  V.  R.  R.  Co.,  44  Iowa,  172. 

*  Atchison  etc.  R.  R.  Co.   v.  Ed- 
wards, 20  Kan.  531. 


2538 

)  rauy  rocovor 
has  iio  riffht 
largo  tljo  rail- 
0  who,  know- 
tratod  fences, 
n  uninclosed 
lilroad  fences 
'  of  such  con- 
recovery  for 
►ad  track.'' 

ble  are  within 

;08  where  the 
train,  it  seems 
)ne  caused  by 
rs.'  In  Iowa 
d  or  killed  by 
s  held  that  if 
defect  in  the 
eir  alarm  and 

The  Kansas 
)r  injuries  to 
)ad,  or  in  any 

This  is  licld 
cattlo  (which 
lO  fence)  from 
'led  upon  the 


re  fence  inclos- 
onto  the  track, 
linst  the  fcuco 

R.  Co.  r.  Smith, 
tiore  etc.  R.  K.  Co. 

107;  Kniglitr.  U. 
5;  Siebert  v.  R.  R. 

Co.,  44  Iowa,  17'2. 
El.  R.  Co.   V.  Ed. 


2539 


INJURIES   TO   ANnfALS    BY    RAILROADS.         g  1115 


and  wore  injured.  HrhU  that  the  leaving  of  Dw  pi\U>  open  was 
tlio  proxiniato  causo  of  the  injury;  SdviKjr  v.  J!.  A'.  Co.,  ,",1 
Minn.  411).  liy  roaHoii  of  the  nc^^lect  of  a  railroiHl  to  propi-rly 
maintain  a  fence,  plaintiff's  nmlc  got  upon  I'lr  track,  and  put 
his  foot  into  a  small  hole  in  the  groinid  lictwccti  two  tirs.  thus 
breaking  his  leg.  Held,  that  tlu;  railroad  company  could  not 
bo  made  rcHponsible:  Ndnou  v.  It.  It.  Co.,  'M  Minn. '74. 

§  1414.  Injuries  to  Railroad.  —  The  owner  of  cattlo 
may  bo  liable  to  an  action  by  the  railroad;  as  where  ho 
permits  them  to  stray  upon  the  track,  whereby  a  train  is 
thrown  off,  and  property  is  damaged.' 

Illustuatio.ns. —  PlaintifT's  Intestate  was  a  fironmn  (Mnjiloyod 
on  a  railroad,  and  while  engaged  in  running  a  fn ■-!!(:  train, 
struck  a  steer  l)olonging  to  defendant,  which  had  Ht  rayed  on 
the  track;  the  engine  and  tender  were  thrown  from  the  track, 
and  plaintiff's  intestate  so  injured  that  he  di(  '..  The  riglit  it' 
way  at  the  place  of  the  injury  was  owned  ii.  fee-sinipH>  hy  the 
railroad  couipuny,  who  had  obtained  a  deed  thereAtr  troni  the 
dc<'!'ndant,  the  latter  owning  the  land  on  l)oth  sidt  s  of  the  right 
of  way.  The  railroad  was  unfenced.  Defendant  was  in  the 
habit  of  turning  his  cattlo  loose  on  his  own  lands,  and  they 
frequently  strayed  on  and  across  the  railroad  track.  Ilrlit,  that 
plaintift"  had  no  cause  of  action  against  the  defendant:  Sliennan 
V.  AndersoUy  27  Kan.  331;  41  Am.  Rep.  414. 

§  1415.  Law  and  Pact.  — The  question  whether  or  not 
a  railroad  is  obliged  to  fence  at  a  particular  place  is  ono 
of  law  for  the  court,  and  not  for  the  jury;-  as,  for  example, 
as  to  what  are  "depot-grounds."''  But  the  following  aro 
questions  of  fact  for  the  jury,  viz.:  Whether  or  not  the 
company  has  securely  fenced  its  road  at  a  particulcr  i)lace; 
or  whether  the  injury  occurred  at  a  particular  place,  where 
the  company  is  bound  by  law  to  maintain  a  fence ;^  and 
whether  or  not  the  injury  occurred  in  consequence  of  tlio 
defect. 


'  Hannibal  etc.  R.  R.  Co.  v.  Ken- 
ney,  41  Mo.  271;  Housatouic  etc.  R. 
R.  Co.  V.  Knowles,  30  Conn.  313; 
Annapolis  etc.  R.  R.  Co.  v.  Baldwin, 
60  Mil.  88;  45  Am.  Rep.  711. 

^  Illinois  etc.  R.  R.  Co.  v.  Whalon, 
42  111.  396;  Chicago  etc.  R.  R.  Co.  v. 
Eagle,  76  111.  318;  iudiaaapolia  etc.  R. 


R.  Co.  V.  Oestel,  20  In.l.  2■^l;  Toledo 
etc.  R.  R.  Co.  K.  Cory,  39  Ind.  218. 

3  Blair  v.  R.  R.  Co.,  20  Wis.  254; 
Davis  V.  R.  R.  Co.,  20  Iowa,  549. 

«  Estes  V.  R.  R.  Co.,  03  Mo.  .309; 
Mumpower  V.  R.  II.  Co.,  59  Mo.  240; 
Toledo  etc.  R.  R.  Co.  v.  Cory,  39  Ind. 
218. 


§  1416 


ANIMALS. 


2540 


§  1416.  Pleading.  —  The  facts  upon  which  the  statu- 
tory liability  anses  should  be  set  out.^  But  an  express 
averment  that  the  injury  was  caused  by  the  failure  of 
defendant  to  maintain  fences  is  not  lecessary;  an  alle- 
gation warranting  that  inference  is  sufficient.''  It  is  not 
essential  to  state  that  the  plaintiff  was  not  guilty  of  con- 
tributory negligence.'  Allegations  of  negligence  are 
unnecessary  and  irrelevant  where  the  cause  of  action  as 
stated  is  complete  under  the  statute.*  Where  the  decla- 
ration shows  a  cause  of  action  at  common  law,  and  the 
evidence  shows  a  state  of  facts  entitling  the  plaintiff  to 
recover,  if  at  all,  under  the  statute,  he  cannot  recover.* 
In  order  to  entitle  the  plaintiff  to  recover  at  all,  the  dec- 
laration must  be  complete,  either  under  the  statute  or  at 
common  law.*  In  Illinois,  a  declaration  averring  that  de- 
fendant failed  to  fence  its  road,  and  that  it  so  carelessly 
ran,  conducted,  and  directed  its  train  that  it  struck  and 
killed  the  plaintiff's  horse,  was  held  to  be  good,  either  as 
a  declaration  under  the  statute  or  at  common  law.'^  The 
killing  or  injury  of  animals  at  different  times  is  each  a  sep- 
arate and  distinct  cause  of  action,  which  should  be  stated 
in  separate  i)aragraphs  of  the  complaint.  If  the  complaint 
indicates  but  one  cause  of  action,  the  plaintiff  will  bo 
confined  in  his  evidence  to  a   single  cause  of  action.^ 


'  JefiFersonville  etc.  R.  R.  Co.  v. 
Lyon,  55  Iiul.  477;  Mumpowcr  v.  R. 
R.  Co.,  59  Mo.  245;  Smith  v.  R.  R. 
Co.,  35  N.  H.  357;  Norton  v.  R.  R. 
Co.,  48  Mo.  387;  Cecil  v.  R.  R.  Co., 

47  Mo.  246;  Bigelow  v.    R.    R.  Co., 

48  Mo.  510;  Rockfortl  etc.  R.  R. 
Co.  V.  Phillips,  6G  Mo.  548;  Kansas 
Pacific  R.  R.  Co.  v.  Taylor,  17  Kan. 
566. 

«  Bo  wen  V.  R.  R.  Co.,  75  Mo.  426; 
Belcher  v.  R.  R.  Co.,  75  Mo.  514. 

*  Jeflfersonville  etc.  R.  R.  Co.  v. 
Lyon,  55  Ind.  477;  Toledo  etc.  R.  R. 
Co.  V.  Harris,  49  Ind.  119. 

«  Gary  v.  R.  R.  Co.,  60  Mo.  209; 
Crutchtield  V.  R.  R.  Co.,  64  Mo.  255; 
Rockford  etc.  R,  R.  Co.  v.  Lynch; 
67  111.  149;  Collins  v.  R.  R.  Co.,  G5 


Mo.  230;  Edwards  v.  R.  R.  66  Mo. 
567. 

*  Terre  Haute  etc.  R.  R.  Co.  v.  Au- 
gustus,  21  111.  186;  Luckie  v.  R.  R. 
Co.,  67  Mo.  24.'). 

«  Calvert  v.  R.  R.  Co.,  34  Mo.  242; 
Garner  v.  R.  R.  Co.,  34  Mo.  235;  Au- 
buchon  V.  R.  R.  Co.,  52  Mo.  522; 
Smith  V.  R.  R.  Co.,  35  N.  H.  357; 
Cooleyi).  Brainard,  38  Vt.  ,394;  In- 
dianapolis etc.  R.  R.  Co,  V.  Sparr,  15 
Ind.  440. 

'  Chicago  etc.  R,  R.  Co.  v.  Magee, 
60  111.  529. 

"  Jeffersonville  etc.  R.  R.  Co.  r. 
Brevoort,  30  Ind.  325;  ludianapolia 
etc.  R.  R.  Co,  V.  Kercheval,  24  lud. 
139;  Indianapolis  etc.  R.  R.  Co.  v. 
EUiott,  20  lud.  430. 


2540 

lich  the  statu- 
ut  an  express 
the  failure  of 
ssary;  an  alle- 
nt.2  It  is  not 
guilty  of  con- 
egligence  are 
e  of  action  as 
ere  the  decla- 

law,  and  the 
le  plaintiff  to 
inot  recover.* 
t  all,  the  dec- 
!  statute  or  at 
irring  that  de- 

so  carelessly 
t  struck  and 
ood,  either  as 
n  law/     The 

is  each  a  sep- 
)uld  be  stated 
the  complaint 
iutiff  will  bo 
e  of  action.*' 

V.  R.  R.  66  Mo. 

R.  R.  Co.  V.  Au- 
Luckie  v.   R.  R. 

Co.,  34  Mo.  242; 

34  Mo.  2;J5;  Au- 
:o.,  52  Mo.  022; 
.,   35  N.  H.  3.57; 

38  Vt.  .394;  111- 
.  Co.  V.  Sparr,  15 

i.  Co.  V.   ]Magee, 

c.R.  R.  Co.  V. 
525;  Iiuliaiiaijolis 
srcheval,  24  lad. 
tc.  R.  R.  Co.  V. 


2541 


INJURIES   TO   ANIMALS    BY    RAILROADS.         §  1417 


There  cannot  be  a  recovery  in  the  same  action  for  the 
killing  of  a  horse  and  an  injury  to  the  harness.^  The 
duty  of  the  defendant  to  fence  or  otherwise  guard  its 
tracks  must  be  averred  by  showing  the  facts  upon  which 
the  duty  arose.''  The  petition  must  state  accurately  the 
facts  upon  which  a  recovery  is  asked.  Thus  an  allegation 
that  the  fence  was  defective  will  not  support  evidence  that 
a  gate  was  left  open.^  An  allegation  that  the  defendant 
failed  to  construct  cattle-guards  will  not  support  a  recov- 
ery for  failing  to  fence.-*  Where  the  provisions  of  the 
statute  are  subject  to  exceptions,  these  exceptions  must  be 
negatived;  ^  as  that  the  stock  was  not  killed  within  the 
limits  of  a  corporate  town.*'  In  actions  before  justices  of 
the  peace,  the  technical  rules  of  pleading  are  not  enforced, 
but  the  statement  of  the  cause  of  action  usually  required 
must  be  suflBciently  explicit  to  apprise  the  defendant  of 
the  nature  of  the  injury,  and  whether  it  is  under  the 
statute  or  at  common  law.' 

§  1417.    Burden  of  Proof— Evidence  of  Negligence.— 

The  burden  of  proof  that  the  defendant  is  within  the 
provisions  of  the  statute  is  on  the  plaintiff,^  except  as  to 


» Dillard  v.  R.  R.  Co.,  58  Mo.  70. 

«  Bait.  etc.  R.  R.  Co.  v.  Wilson,  31 
Ohio,  555. 

8  Illinois  etc.  R.  R.  Co.  r.  McKee, 
43  111.  120. 

'Parker  v.  R.  R.  Co.,  16  Barb. 
315. 

'  Where  they  are  contained  in  the 
enacting  clause:  Chicago  etc.  R.  R. 
Co.  V.  Carter,  20  III.  390;  Ohio  etc.  R. 
R.  Co.  V.  Brown,  23  111.  94;  Galena 
etc.  R.  R.  Co.  V.  Sumner,  24  Hi.  631; 
Great  Western  R.  R.  Co.  v.  Bacon, 
30  m.  347;  83  Am.  Dec.  199;  Toledo 
etc.  R.  R.  Co.  V.  Lavery,  71  111.  522; 
Great  Western  R.  R.  Co.  lu  Hanks, 
36  111.  281;  Illinois  etc.  R.  R.  Co.  v. 
Williams,  27  ill.  48.  AHter  where 
they  are  in  another  section:  Chicago 
etc,  R.  R.  Co.  V.  Carter,  20  111.  390; 
Toledo  etc.  R.  R.  Co.  v.  Lavery,  71 
111.  522. 


fiSchultei).  R.  R.  Co.,  76  Mo.  324. 

'  Thompson  on  Negligence,  536; 
Ohio  etc.  R.  R.  Co.  v.  Miller,  46  Ind. 
215;  Toledo  etc.  R.  R.  Co.  v.  Reed,  23 
Ind.  101;  Toledo  etc.  R.  R.  Co.  v. 
Lurch,  23  lud.  10. 

*  Indianapolis  etc.  R.  R.  Co.  v. 
Means,  14  lud.  30;  Indianapolis  etc.  R. 
R.  Co.  V.  Penry,  48  Ind.  128;  Rogers 
!>.  R.  R.  Co.,  1  Allen,  16;  Toledo  etc. 
R.  R.  Co.  V.  Logan,  71  111.  191;  Bax- 
ter V.  R.  R.  Co.,  102  Mass.  384;  Kan- 
sas etc.  R.  R.  Co.  V.  Ball,  19  Kau.  5.35; 
Morrison  v.  R.  R.  Co.,  32  Barb.  569; 
Indianapolis  etc.  R.  R.  Co.  v.  Stall- 
man,  15  Ind.  205;  Toledo  etc.  R.  R. 
Co.  V.  Pence,  68  111.  525;  Jefferson- 
ville  etc.  R.  R.  Co.  v.  O'Connor,  37 
Ind.  95;  Ewing  v.  R.  R.  Co.,  72  111. 
25;  Comstock  v.  R.  R.  Co.,  32  Iowa, 
376;  Flint  etc.  R  R.  Co.  v.  Lull,  28 
Mich.  510. 


§1418 


ANIMALS. 


2542 


matters  peculiarly  within  the  defendant's  knowledge.*  So 
the  plaintiff  must  prove  all  the  necessary  facts.  If  it  is 
a  necessary  allegation  of  the  petition  that  the  animals 
came  upon  the  track  at  the  place  where  the  fence  was 
defective,  it  must  be  shown  in  evidence  that  such  was  the 
fact.  It  is  not  suflScient  to  show  that  the  fence  on  each 
side  of  the  road  was  poor  and  defective.^  Evidence  that  the 
fence  was  defective  on  the  22d  of  the  month  is  not  suffi- 
cient  to  show  that  it  was  defective  on  the  20th,  the  date 
of  the  accident,  and  thereby  to  charge  the  companj',  with- 
out showing  negligence.'  Where  an  animal  is  killed  by 
a  train  at  a  public  crossing,  proof  that  the  employees  in 
charge  of  the  train  failed  to  ring  the  bell  or  sound  the 
whistle,  as  required  by  the  statute,  is  not  sufficient  to  au- 
thorize a  verdict  against  the  company.  It  must  be  fur- 
ther shown  by  facts  and  circumstances  that  such  neglect 
caused  the  injury.  The  failure  to  give  the  signals  is  neg- 
ligence, but  having  shown  that  fact,  it  must  be  supple- 
mented by  testimony  to  show  that  the  negligence  caused 
the  damage,  and  the  burden  of  proof  is  upon  the  plain- 
tiflfto  show  that  such  negligence  caused  the  injury.* 


§  1418.  Measure  of  Damages.  —  Where  the  stock  is 
killed  or  rendered  entirely  valueless,  the  measure  of  dam- 
ages  is  its  value  at  the  time  of  the  injury.^  Where  the 
animal  killed  or  injured  has  a  value  as  meat,  the  owner 
must  dispose  of  it  as  such  to  the  best  advantage,  and  the 
measure  of  damage  is  then  the  value  of  the  cattle  as  in- 
jured and  their  value  before  the  injury."  The  owner, 
however,  is  only  to  be  charged  with  the  net  proceeds  of 


*  Great  Western  R.  R.  Co.  v.  Bacon, 
30  111.  .S47;  83  Am.   Dec.  199. 

•^  Wabash  etc.  R.  R.  Co.  v.  Brown,  2 
111.  App.  516. 

"  Illinois  etc,  R,  R.  Co.  v.  VVhalen, 
42  111.  390. 

*  Holman  v.  R.  R.  Co.,  62  Mo.  562. 

*  Lapine  v.  R.  R.  Co.,  20  La.  Arit. 
158;   ladiauapolis  etc.  B.  R.   Co.   v. 


Mustard,  34  Ind.  51;  Toledo  etc.  R. 
R.  Co.  V.  Johnston,  74  111.  83;  Toledo 
etc.  R.  R.  Co.  V.  Arnold,  43  111.  418; 
Madison  etc.  R.  R.  Co.  v.  Herod,  10 
Ind.  2;  Ohio  etc.  R.  R.  Co.  v.  Hays, 
35  Ind.  173. 

"  Illinois  etc.  R.  R.  Co.  v.  Finuigan, 
21  111.  640. 


2542 

knowledge.^    So 
T  facts.     If  it  is 
at  the  animals 
)  the  fence  was 
at  such  was  the 
e  fence  on  each 
v'idence  that  the 
nth  is  not  suflS- 
3  20th,  the  date 
corapanj',  with- 
lal  is  killed  by 
e  employees  in 
II  or  sound  the 
lufficient  to  au- 
;t  must  be  fur- 
at  such  neglect 
!  signals  is  neg- 
lust  be  supple- 
jligence  caused 
ipon  the  plain- 
e  injury.* 

-e  the  stock  is 
Basure  of  dam- 
'.^  Where  the 
eat,  the  owner 
ntage,  and  the 
le  cattle  as  in- 
The  owner, 
let  proceeds  of 

51;  Toledo  etc.  R. 
,  74  111.  83;  Toledo 
mold,  43  111.  41S; 
L.  Co.  v.  Herod,  10 
a.  R.  Co.  V.  Hays, 

R.  Co.  V.  Finuigan, 


2543  INJURIES   TO   ANIMALS   BY   RAILROADS.         §  1418 

such  cattle,  after  deducting  a  fair  allowance  for  the  time 
and  trouble  required  in  effecting  a  sale.'  If  tlio  cattle 
when  discovered,  are  mangled,  swollen,  and  bruised,  the 
plaintiff  is  not  required  to  dispose  of  their  bodies  to  en- 
title him  to  recover  their  full  value.^  If  animul.s  killed 
are  used  or  given  away  by  plaintiff,  the  value  of  the  car- 
cass should  be  deducted.^  But  it  is  not  necessary  to  a 
recovery  by  the  owner  of  an  animal  maimed  that  i/e 
should  surrender  it  to  the  company,  but  ho  can  recover 
only  to  the  extent  of  the  injury  done.*  The  plaintiff  is 
not  entitled  to  interest  on  the  value  of  the  stock  from  the 
date  of  the  injury.^  If  the  evidence  shows  willful  mis- 
chief  or  gross  negligence,  or  both,  the  jury  may  find  such 
punitive  or  exemplary  damages  as  the  case  justifies, 
otherwise  not.«  Exemplary  damages  are  proper  where 
the  evidence  shows  gross  negligence  or  a  wanton  and 
reckless  disposition  on  the  part  of  its  agents  to  injure  or 
destroy  the  plaintiff's  property.^  If  the  verdict  is  in  ex- 
cess of  the  real  injury,  it  will  be  set  aside.**  But  aliter  if 
it  is  only  slightly  in  excess  of  the  amount  at  which  the 
court  would  have  assessed  the  damages."  Statutes  allow- 
ing double  damages  against  railroads  for  the  killing  of 
stock  by  failing  to  fence  their  tracks  have  been  held 
constitutional,'"  and,  again,  unconstitutional."  A  statute 
rendering  railroads  liable  for  cattle  killed  by  them,  at  a 
valuation  to  be  conclusively  fixed  by  appraisers,  is  uncon- 

»  Dean  v.  R.  R.  Co.,  43  Wis.  305. 
^  Rockford  etc.  R.  R.  Co.  v.  Lynch. 
67  HI.  149. 
3  Case  V.  R.  R.  Co.,  75  Mo.  668. 

*  Jackson  v.  R.  R.  Co.,  74  Mo. 
526. 

*  Meyer  v.  R.  R.  Co.,  64  Mo.  543; 
Dean  v.  R.  R.  Co.,  43  Wis.  305;  To- 
ledo etc.  R.  R.  Co.  V.  Johnston,  74  111. 
83. 

« Vickshurg  etc.  R.  R.  Co.  v.  Pat- 
ton,  31  xMiss.  197;  06  Am.  Dec.  552; 
Toledo  etc.  R.  R.  Co.  v.  Johnston,  74 
111.  83. 


'  Vicksburg  etc.  R 
ton,    31    Miss.    15(3; 


R.  Co.  V. 
(JG    Am. 


Pat- 
Dec. 


R.  R. 


Co.  V.  Arno'  1, 
Heflin, 


552. 

« Toledo  etc. 
43  111.  418. 

»  Rockford  etc.  R.  R.  Co.  v. 
65  Mo.  366. 

1'^  Tread  way  v.  R.  R.  Co.,  43  Iowa, 
527;  Humes  v.  R.  R.  Co.,  82 Mo.  221; 
52  Am.  Rtp.  369;  Mo.  Pac.  R.  R.  Co. 
V.  Humes,  114  U.  S.  512;  Snealman  n 
R.  R.  Co.,  71  Mo.  434. 

''  Atchison  etc.  R.  R.  Co.  v.  Baty,  6 
Neb.  37;  29  Am.  Rep.  356. 


§1418 


ANIMALS. 


2544 


stitutional,  aa  denying  the  right  to  a  trial  by  jury.*  An 
Illinois  statute  allowing  the  plaintiff  to  recover  a  reason- 
able attorney's  fee  for  the  prosecution  of  his  suit  against 
the  company,  in  addition  to  the  damages  sustained,  has 
been  held  valid.''  A  Kansas  statute  to  the  same  effect 
has  been  sustained.' 


1  Graves  v.  R.  R.  Co.,  5  Mont.  556; 
51  Am.  Rep.  81. 

^  Peoria  etc.  R.  R.  Co.  v.  Daggan, 
109  111.  537;  50  Am.  Rep.  til9. 


'  Kansas  Pac.  R.  R.  Co.  r.  Mower, 
16  Kan.  573;  Atchison  etc.  R.  R.  Co. 
V.  Harper,  19  Kan.  529. 


2544 


il  by  jury .^  An 
Bcover  a  reason- 
his  suit  against 
!S  sustained,  has 
the  same  effect 


I  R.  B.  Co.  V.  Mower, 
bchisoa  etc.  R,  R.  Ca 
Ein.  529. 


TITLE  XVIII. 

SHIPS  AND  SHIPPING. 


m 


TITLE  XVIII. 

SHIPS  AND  SHIPPING. 


CHAPTER  LXXVE 

SHIPS  AND  SHIPPING. 


■  Billa  of  sale  -»  Eegialration. 


•  In  cases  of  necessity 


§  1419.  Ships  and  vessels  —  What  are. 

§  1420.  Title  to  ships  —  How  acquired  ■ 

§  1421.  Mortgage  of  vessel. 

§  1422.  Part  owners  —  Rights  and  liabiUtiea. 

§1423.  Bottomry  — Respondentia. 

§  1424.  The  master  —  His  duties,  rights,  and  powers, 

§  1425.  The  master  —  His  duties,  rights,  and  powers  - 

and  emergency. 

§  1426.  Ship's  husband. 

§  1427.  Supercargoes. 

§  1428.  The  seamen  —  Rights  and  duties  of  —  Contracts  with. 

§  1429.  The  seamen  —  Right  to  wages. 

§  1430.  The  seamen  —  What  is  and  what  is  not  a  forfeiture  of  wages. 

§  1431.  Pilots  —  Rights  and  duties  of  —  Tows. 

§  14.32.  Liability  for  repairs  and  supplies. 

§  143.3.  Employment  of  ship — General  ship  —  Common  carrier. 

§  14.34.  Employment  of  ship  —  Charter-party  —  Hiring  of  ship, 

§  1435.  Collisions. 

§  1436.  Collisions  —  Lights.  , 

§  1437.  Collisions  —  Watches  and  lookouts. 

§  1438.  Salvage  —  What  is  the  subject  of. 

§  1439.  Salvage  —  Who  is  entitled  to. 

§1440.  Salvage  —  Amount  of. 

§  1441.  General  average. 

§  1442.  The  admiralty  jurisdiction. 

§  1443.  Tho  admiralty  jurisdiction  —  Torts  and  matters  on  the  high  seas. 

§  1419.    Ships  and  Vessels— What  are.— Ships  and 
vessels   are   personal    property.     In  nautical  language 

a  ship  is  a  particular  kind  of  a  three-masted  vessel,  but 


§  1420 


SHIPS  AND   SniPPING. 


2548 


in  legal  ijhraseology  tlio  word  "ship  "  includes  all  kinds 
of  vessels  propelled  with  sails  as  well  as  with  steam.'  As 
used  in  different  statutes,  the  following  have  been  held  to 
fall  within  the  terms  "  ship  or  vessel ":  Any  structure 
which  is  made  to  float  upon  the  water  for  purposes  of 
commerce  or  war,  whether  impelled  by  wind,  steam,  or 
oars;^  the  tackle,  apparel,  and  furniture  of  a  ship  and  its 
appurtenances  necessary  for  a  voyage;'  a  floating  eleva- 
tor.'* And  the  following  have  been  held  not  within  the 
phrase,  viz.:  An  open  boat;^  a  ferry-boat;"  a  canal-boat;^ 
coal-barges  or  flat-boats,  used  to  transport  goods  down  a 
river,  and  sold  for  lumber  at  their  destination;*  sea- 
stores  in  a  vessel;^  small  undecked  boats,  which  do  not  go 
out  of  sight  of  land;^"  and  fishing-vessels." 

§  1420.  Title  in  Ships  —  How  Acquired  —  Bills  of  Sale 
■—Registration.  —  The  title  to  a  ship  may  bo  acquired  by 
building  it  or  by  purchase.  Like  other  chattels,  it  goes, 
on  the  death  of  the  owner,  to  his  administrator,  as  in  tlie 
case  of  personal  property  in  general;  but,  unlike  other 
chattels,  it  cannot  be  transferred  by  mere  delivery,  to  give 
the  purchaser  a  good  title.  By  the  United  States  statute  " 
it  is  declared  that  no  bill  of  sale,  mortgage,  hypotheca- 
tion, or  conveyance  of  a  vessel  of  the  United  States,  in 
whole  or  in  part,  shall  be  valid  against  any  other,  except 
the  grantor  or  mortgagor,  his  heirs  and  devisees,  and  per- 
eons  having  actual  notice,  unless  the  instrument  be  record- 
ed at  the  office  of  the  collector  of  customs.''   A  bill  of  sale 


1  The  Kosciusco,  11  N.  Y.  Leg.  Obs. 

«  Chafife  V.  Ludeling,  27  La.  Ann.  607. 

3  The  Ontario,  2  Lowell,  40;  Swift 
V.  Brownell,  1  Holmes,  467. 

♦  The  Hezekiah  Baldwin,  8  Ben, 
556. 

^  United  States  v.  An  Open  Boat,  6 
Mason,  120. 

"  Birkbeck  v,  Hoboken  Ferry  Boats, 
17  Johns.  54. 

'  Many  v.  Noyes,  5  Hill,  34;  Hicka 
V.  Williams,  17  Barb.  623. 


8  Jones  V.  Coal  Barges,  3  Wall.  Jr. 
53. 

®  Swift  V.  Brownell,  1  Holmes, 
467. 

^°  Farmer's  Delight  v,  Lawrence,  5 
Wend.  564. 

"  Simpson  v.  Story,  145  Mass.  497; 
1  Am.  St.  Rep.  480. 

"  9  U.  S.  Stats.  440,  c.  27;  U.  S. 
Rev.  Stats.,  sees.  4131-4196. 

"  See  Bofinger  v.  United  States,  18 
Ct.  of  a.  48;  The  Superior,  5  Saw. 
83. 


2548 

es  air  kinds 
stoam.^  As 
been  held  to 
[ly  structure 

purposes  of 

d,  steam,  or 

ship  and  its 

Dating  eleva- 

)t  within  tho 

canal-boat;^ 
oods  down  a 
lation;®  sea- 
Ich  do  not  go 


-Bills  of  Sale 

)  acquired  by 

ittels,  it  goes, 

tor,  as  in  the 

unlike  other 

ivery,  to  give 

ates  statute  ^- 

,  hypotheca- 

)d  States,  in 

other,  except 

ees,  and  per- 

mt  be  record- 

A  bill  of  sale 

jirgea,  3  Wall.  Jr. 

lell,    1    Holmes, 

it  V.  Lawrence,  5 

f,  145  Mass.  497; 

[),  c.  27;   U.  S. 
E|l-4196. 

Jnited  States,  18 
Superior,  5  Saw. 


2549 


SHIPS  .LN'D  siiirnxG. 


§  1420 


of  the  vessel  and  cargo  while  at  sea  is  valid,  provided  the 
vendee  takes  possession  without  delay  upon  its  arrival.^ 
So  of  a  mortgage.^  The  holders  of  a  bill  of  sale  of  a  ves- 
sel absolute  on  its  face,  but  intended  as  a  mortgage,  iaay 
maintain  an  action  for  its  conversion  against  a  pcrsoa 
claiming  under  a  barratrous  sale  by  the  master,  notwith- 
standing the  fact  that,  on  learning  of  tho  barratrous  sale, 
they  abandoned  her  to  the  underwriters,  and  received 
payment  as  on  a  total  loss.^  "Where  a  vessel  is  built  for  a 
certain  price,  and  payments  are  made  on  installments  as 
the  work  progresses,  and  the  work  is  done  under  the 
superintendeneo  of  the  orderer,  the  property  in  the  ves- 
sel, it  is  held  in  England,  is  in  the  orderer."'  This  doc- 
trine is  followed  in  some  of  the  states.'  Others,  however, 
hold  that  in  such  cases  the  property  in  the  vessel  remains 
in  the  builder  until  it  is  completed  and  delivered.'^ 

Every  vessel  in  the  United  States  which  is  afloat  is 
bound  to  have  with  her  from  the  officers  of  her  home 
port  either  a  register  or  an  enrollment.  The  former  is 
used  when  she  is  engaged  in  a  foreign  voyage  or  trade; 
and  the  latter  when  she  is  engaged  in  domestic  commerce, 
usually  called  the  coasting  trade.  If  found  afloat,  whether 
by  steam  or  sail,  without  one  or  the  other  of  these,  and 
without  the  right  one  with  reference  to  tlie  trade  she  is 
engaged  in  or  the  place  where  she  is  found,  she  is  not 
entitled  to  protection  under  the  laws  of  the  United  States, 


*  Portland  Bank  v.  Stacey,  4  Mass. 
6G1;  3  Am.  Dec.  253;  Southern  Bank 
i\  Wood,  14  La.  Ann.  554;   74  Am. 


3  Clark  V.  Wilson,  103  Mass.  219;  4 
Am.  Hep.  532. 
*  Woods  V.  Russell,  5  Barn.  &  Aid. 


Dec.  440.     Where  a  vessel  is  sold  to    942;  Clarke  v.  Spence,  4  Ad.  &  E.  4GS. 


be  delivered  to  the  buyer  in  a  certain 
city,  and  the  buyer  does  not  designate 
a  particular  place  for  delivery,  the 


^Derbyshire's'  Estate,  11  Phila. 
627;  81  Pa.  St.  18;  Scudder  v.  Calais 
Steamboat  Co.,  1  Cliff.  370;   Sandford 


seller  may  tender  a  delivery  at  safe  v.  Wiggins  Ferry  Co.,  27  Ind.  522. _^ 
anchorage  in  the  harbor.     He  is  not        "  Merritt  r.  Johnson,  7  Johns.  473; 

called  upon  to  place  the  vessel  in  a  5  Am.  Dec.  289;  Andrews  v.  Durant, 

dry-dock,    that    the    purchaser    may  11  N.  Y.  35;  G2  Am.  Dec.  55;  People 

there  examine  her:    Lincoln  v.  Gal-  v.  Commissioners  of  Taxes,  58  N.  Y. 

lagher,  79  Me.  189.  242;  Elliott  v.  Edwards,  35  N.  J.  L. 

■'  Portland  Bank  v.  Stubbs,  6  Mass.  205;   30  N.   J.   L.  449;  Williams  v. 

422;  4  Am.  Dec.  151;  Taber  v.  Ham-  Jackman,  16  Gray,  514;  Brigg»  u  A. 

lin,  97  M>S3.  489;  93  Am.  Dec.  113.  Li^ht  Boat,  7  Allen,  387. 


§§  1421,  1422  SHIPS   AND   SHIPPINO. 


2550 


but  is  liable  to  seizure  for  such  violation  of  the  law;  and 
in  a  foreign  jurisdiction  or  on  the  high  seas  can  claim 
no  rights  as  an  American  vessel.* 

§  1421.  Mortgage  of  Vessel. — A  mortgage  duly  regis- 
tered at  the  homo  port  gives  the  mortgage  priority  over 
subsequent  mortgagees  or  purchasers,  notwithstanding 
conflicting  state  laws,"  and  is  superior  to  a  subsequent 
attachment  under  a  state  law.'  A  mortgage  recorded 
in  the  collector's  office  as  required  by  the  federal  statute 
is  valid,  although  the  state  law  is  not  complied  with.* 
When  the  mortgage  is  not  recorded,  it  is  stiil  valid  as 
as  between  the  parties  and  persons  having  actual  notice.' 
The  mortgagee  of  a  boat  who  allows  the  owne-  to  use 
it  for  general  freighting  purposes  subordinates  his  lien 
to  the  ordinary  obligations  incurred  through  the  con- 
tracts of  the  master.' 

§  1422.  Part  Owners — Rights  and  Liabilities.  —  Each 
part  owner  of  a  ship  is  liable  in  solido  to  third  persons  for 
all  debts,  without  regard  to  the  proportions  of  their  in- 
terests or  any  agreements  between  themselves.  A  court 
of  equity,  however,  as  between  them,  will  distribute  the 
liability  ratably.'  Part  owners  of  a  ship  are  tenants  in 
common,  not  joint  tenants,*  but  as  to  the  earnings  of  the 
vessel  they  are  partners,®  and  are  entitled  to  equitable 
relief  as  partners.*"    The  owners  of  a  majority  of  interest 


'  Badger  v.  Gutierez,  111  U.  S. 
734. 

•^  White's  Bank  v.  Smith,  7  Wall. 
646. 

»  Aldrich  v.  ^tna  Co.,  8  Wall.  491.  ' 

♦  Folger  V.  Weber,  16  Hun,  512; 
Lawrence  v.  Hodges,  92  N,  0.  672;  53 
Am.  Rep.  436. 

^  Moore  v.  Simonds,  100  U.  S.  145. 

e  The  E.  M.  McChesney,  8  Ben.  150. 

'  Schermerhorn  v,  Loines,  7  Johns. 
311;  Parsons  on  Shipping,  lOO;  Muldon 
V.  Wliitlock,  1  Cow.  290;  13  Am.  Dec. 
633;  Gallitin  v.  The  Pilot,  2  Wall.  Jr. 
292;  WUkius  V.  Reed,  6  Me.  220;  19 


Am.  Dec.  211;  Jones  v.  Pitcher,  3 
Stew.  &  P.  135;  24  Am.  Dec.  716; 
Elder  v.  Larrabee,  45  Me.  590;  71 
Am.  Dec.  567;  Robinson  v.  Stewart, 
68  Me.  61. 

8  Knox  V.  Campbell,  1  Pa.  St.  366; 
44  Am.  Dec.  1.39;  Milburn  v.  Guyther, 
8  Gill,  92;  50  Am.  Dec.  681;  Hopkins 
V.  Forsyth,  14  Pa.  St.  34;  53  Am.  Dec. 
513;  Elder  v.  Larrabee,  45  Me.  590;  71 
Am.  Dec.  567. 

»  Donnell  v.  Walsh,  33  N.  Y.  43;  88 
Am.  Dec.  361;  and  see  note  to  this 
case,  88  Am.  Dec.  364-368. 

10  Eudsor  V.  Simpson,  12  Phila.  392. 


2550 

e  law;  and 
caa  claim 


duly  regis- 
•iority  over 
thstanding 
subsequent 
B  recorded 
3ral  statute 
)lied  with.* 
ill  valid  as 
ual  notice.' 
rne'  to  use 
es  his  lien 
h  the  con- 
es. —  Each 

persons  for 
)f  their  in- 
s.  A  court 
itribute  the 

tenants  in 
lings  of  the 
0  equitable 

of  interest 

3  V.  Pitcher,  3 
Am.  Dec.  710; 
>  Me.  590;  71 
son  V.  Stewart, 

,  1  Pa.  St.  366; 
urn  V.  Guyther, 
!.  681;  Hopkins 
U;  53  Am.  Dec. 
,  45  Me.  590;  71 

33  N.  Y.  43;  88 

ee  note  to  thia 

-368. 

1, 12  Fhila.  392. 


2651 


SHIPS  AND  smrriNO. 


8  1423 


in  a  vessel  hsc7e  a  right  to  control  her  and  direct  Iho 
manner  of  her  employment.'  One  or  more  joint  owners 
may  maintain  an  action  against  the  others  to  recover 
damages  occasioned  by  their  wrongful  seizure  thereof 
and  consequent  interruption  of  a  voyage  for  which  she 
was  then  under  charter."  A  part  owner  may  commit 
barratry  against  the  other  owners.'  One  joint  owner  in 
a  homo  port  cannot  incur  expenditures  for  repairs  with- 
out the  knowledge  and  consent  of  the  others  and  recover 
from  them  their  proportion  of  the  exponse.*  He  is  not 
entitled  to  her  exclusive  use  without  gi^  ing  security  to  his 
co-owner."  The  general  owners  of  a  vessel  are  not  liable 
for  damages  occasioned  by  a  collision  happening  through 
the  fault  or  negligence  of  the  master  of  the  vessel,  who 
controls  her  pro  hac  vice,  and  is  sailing  her  "  on  shares."" 
Admiralty  has  jurisdiction  to  order  the  sale  of  a  vessel  on 
the  application  of  the  owners  of  one  half  of  her,  in  caso 
of  a  disagreement  between  them  and  the  owners  of  the 
other  half.  But  such  disagreement  must  be  such  as  pre- 
vents the  present  employment  of  the  ship,  and  the  owners 
asking  for  a  sale  must  either  propose  a  different  employ- 
ment of  her;  or  if  they  merely  object  to  the  voyage  oi  the 
master  proposed  by  the  other  moiety,  their  objection  must 
be  based  on  reasonable  grounds,' 

§  1423.  Bottomry — Respondentia. — Bottomry  is  a^con- 
tract  in  the  nature  of  a  mortgage  entered  into  by  the 
owner  of  a  ship  or  his  agent,  whereby  a  loan  of  money  is 
obtained  on  the  ship  alone,  or  with  the  freight,  at  an  ex- 
traordinary interest,  upon  maritime  risks  to  be  borne  by 


»Gray  v.  Allen,  14  Ohio,  58;  45 
Am.  Dec.  523;  Williams  v.  Ireland, 
11  Phi!a.  273. 

»  Kellum  V.  Knechdt,  17  Hun,  583. 
And  see  Scull  v.  Raymond,  18  Fed. 
Rep.  547. 

*  Phoenix  Ins.  Co.  v.  Moog»  79  Ala.  ,  Uil 
284;  56  Am.  Rep.  31. 


♦  Benson  v.  Thompson,  27  Me.  470;. 
46  Am.  Dec.  617. 

*  Coyne  v.  Caples,  7  Saw.  360. 
8  Somes  V.  White,  65  Me.  542;  20 

Am.  Rep.  718. 
TXho  AAQJe  H.  Smith,  10   Ben. 


§  1423 


SHIPS   AND   SIIIPPINO. 


2552 


the  louder  for  a  specific  voyage  or  for  a  definite  period.' 
If  the  sliip  completes  lior  voyage  safely,  the  leuder  receives 
back  his  money,  with  interest  as  agreed.  If,  however,  the 
ship  is  lost  by  a  peril  of  the  sea,  the  leuder  is  not  repaidl 
except  to  the  extent  of  what  is  saved.''  There  is  no  per- 
sonal responsibility  in  bottomry.  Tho  money  must  bo 
advanced  on  the  faith  of  tho  ship  and  at  tho  solo  risk  of 
her  loss  or  safety.  So  if  by  the  terms  of  tho  contract  tho 
owner  binds  himself  personallj'  to  repay  tho  loan,  it  is  not 
a  bottomry  loan;'  nor  where  collateral  security  is  given 
for  its  absolute  repayment,  as  where  insurance  policies 
and  tho  vessel  itself  are  assigned  as  security.*  So  it  is 
not  bottomry  if  the  money  loaned  is  to  bo  repaid  at  all 
hazards;  for  the  principal  and  extraordinary  interest  re- 
served is  not  put  absolutely  at  hazard  by  tho  perils  of  the 
voyage.  The  lender  must  run  the  maritime  risk  to  earn 
the  maritime  interest.®  But  if  the  ship  is  lost  or  injured 
by  the  fault  or  misconduct  of  the  master  or  mariners,  or 
of  the  owner,  the  borrower  must  return  the  sum  borrowed, 
with  interest. 

The  following  items  are  not  properly  included  in  a  bot- 
tomry bond:  1.  The  amount  paid  for  old  iron  to  be  taken 
as  freight,  and  the  costs  of  a  suit  against  the  master  of 
the  vessel  to  recover  the  price  of  the  old  iron;  2.  Money 
furnished  to  the  master,  but  not  proved  to  have  been  used 
for  the  ship,  or  loaned  for  the  ship's  use;  3.  Items  for  per- 
sonal expenses  of  the  master  for  cab-hire  and  liquors; 

4.  Commissions  on  the   obligee's  own  bill  for  supplies; 

5.  Cash  for  a  set  of  scales,  weights,  and  measures  not 
shown  to  be  necessary  for  the  ship;  6.  Items  of  luxuHos 


»  The  Draco,  2  Sum.  157;  Greeley 
V.  Waterhouse,  19  Me.  9;  36  Am.  Dec. 
730;  Braynard  v.  Hoppock,  32  N.  Y. 
571;  88  Am.  Deo.  349. 

2  Northwestern  Ina.  Co.  v.  Ferward, 
36  N.  Y.  139;  Bray  v.  Bates,  9  Met. 
237.  Where  the  money  is  payable  at 
all  events,  the  instrument  is  not  a 
bottomry  bond.    The  money  lent  and 


interest  must  be  put  at  risk:  Jennings 
V.  Ins.  Co.,  4  Binn.  244;  5  Am.  Dec. 
404. 

*  Braynard  v.  Hoppock,   32  N.  Y. 
571;  88  Am.  Dec.  549. 

*  Braynard  v.  Hoppock,  32  N.  Y. 
571;  88  Am.  Dec.  349. 

*  Braynard  v.  Hoppock,  32  N.  Y. 
671;  88  Am.  Dec.  349. 


2552 

lito  period.' 
dor  rccoivos 
lowovor,  tho 

not  ropaidl 
0  is  no  per- 
ay  must  bo 
solo  risk  of 
3outract  tho 
>an,  it  is  not 
ity  is  given 
nco  policies 
J.''  So  it  is 
•epaid  at  all 

interest  re- 
porils  of  tho 
risk  to  earn 
jt  or  injured 
mariners,  or 
m  borrowed, 

ded  in  a  bot- 
to  be  taken 
e  master  of 
n;  2.  Money 
ve  been  used 
ems  for  per- 
md  liquors; 
■or  supplies; 
easures  not 
of  luxuries 

,t  risk:  Jennings 
t4;  5  Am.  Dec. 

)ock,   32  N.  Y. 

pock,  32  N.  Y. 

pock,  32  N.  Y. 


2553 


SHIPS  AND  siiiri'iNa. 


§  1*124 


in  the  bill  for  supplies  furnished  by  tho  obligee.'  But  the 
f«)llowinguroproporlyincludo;l:  1.  (jonimissiuns  f(>rpn)(n«r. 
ing  freight;  2.  Stevedore's  bill  for  tuking  curt^u  on  Ijoanl; 
3.  Funeral  expenses  of  former  muster  \vh«>  iljcd  while  the 
ship  was  in  port;  4.  Advertising  for  u  muster,  fur  bottomry 
and  for  bills  against  the  ship;  5.  For  drawin;^  tho  Ixit- 
tomry  bond  and  stamps  on  it;  C.  For  a  butcher's  bill,  tho 
items  of  which  were  not  given,  but  which  were  shown  to 
bo  correct;  7.  Expenses  of  survey  and  cost  of  repairs." 

The  word  "respondentia"  was  formerly  applied  to  tho 
hypothecation  of  tho  cargo  or  goods  on  board  of  a  ship, 
in  distinction  to  the  pledging  of  its  cargo,  which  was  bot- 
tomry. But  tho  latter  word  has  come  in  modern  times  to 
bo  used  to  describe  both  transactions.  Iloncc  the  term 
"respondentia"  has  fallen  into  disuse  in  the  courts.'' 

Illustrations.  —  A  vessel  in  a  foreign  port  requirctl  repairs. 
Tho  master  was  also  the  legal  owner,  ])ut  !>,  at  the  lioiuc  port, 
held  a  mortgage  on  the  vessel  for  more  than  her  value.  A  knew 
this,  and  agreed  to  furnish  the  money  necessary  for  the  repairs 
and  to  accept  drafts  on  B  therefor.  Just  before  the  repairs  were 
finished,  A  refused  to  do  as  agreed,  and  without  communicating 
with  B,  insisted  upon  a  bottomry  bond  at  twenty  per  cent. 
Jlcld,  that  the  master  had  a  right  to  give  the  bond,  but  that 
tho  twenty  per  cent  should  be  disallowed:  The  Archer,  15  Fed. 
Rep.  276.  A  bottomry  bond  was  given  for  repairs  upon  a  vessel 
in  Havana  about  to  sail  for  England.  Tho  bond  provided, 
"  In  case  of  loss  of  tho  brig,  such  an  average  as  by  custom  shall 
have  become  due  on  tho  salvage."  Tho  vessel  suffered  damage 
by  stress  of  weather,  and  was  compelled  to  put  into  Charleston, 
where  she  was  surveyed  and  tho  cost  of  tho  necessary  repairs 
being  deemed  too  high,  she  was  sold.  Held,  that  there  was  no 
loss,  and  that  the  lender  was  not  bound  to  make  any  abate- 
ment from  the  amount  of  the  bond:  Tlie  Unicorn,  5  Hughes,  79. 

§  1424.    The  Master— His  Duties,  Rights,  and  Powers. 

—  The  master  is  bound  as  to  all  with  whom  he  deals  to 
exercise  reasonable  care  and  prudence,''  and  to  receive 
the  cargo  and  stow  it  properly.^     Officers  of  vessels  of 

1  The  Edward  Albro,  10  Ben.  GG8.  *  Purvianco  v.  Angus,  1  Dall.  184. 

«  Tho  Edward  Albro,  10  Ben.  668.  *  1  Schouler  on  Personal  Property, 

^  Rapalje  and  Lawrence's  Law  Diet.  sec.  311. 
1117. 


§1424 


SHIPS   AND   SHIPPING. 


2554 


the  United  States  are  required  to  be  citizens  of  the 
United  States.^  The  master  has  a  right  to  a  certain 
percentage  on  the  freight  he  carries  over  and  above  his 
wages,  which  is  coUed  primage,^  and  to  carry  a  certain 
amount  of  goods  on  his  own  account,'  and  to  an  extra 
allowance  for  services  rendered  out  to  the  line  of  his 
duty,  0.  g.,  in  painting  the  ship/  On  a  general  hiring 
for  no  particular  voyage,  the  captain  may  be  discharged 
at  any  time  without  assigning  cause.^  A  master  who  is 
also  part  owner  does  not  by  virtue  thereof  have  a  special 
privilege  called  or  known  as  a  sailing  or  master's  interest 
which  will  prevent  the  owners  of  a  majority  interest  in 
the  vessel  from  displacing  him  as  master  at  their  pleas- 
ure.^ The  wages  of  the  master  ceases  when  the  voyage 
is  interrupted  hj  shipwreck;  but  he  then  becomes  the 
agent  of  the  owner  to  save  and  preserve  the  wreck,  and 
may  claim  compensation  as  such.' 

The  powers  of  the  mastei  are  first  those  of  an  agent 
with  authority  to  bind  his  employers  in  all  matters  with- 
in the  necessary  scope  of  his  authority,  *  and  the  owner  is 
liable  for  his  torts  within  the  scope  of  his  employment' 
He  has  power  to  hire  seamen  for  the  voyage; '"  to  employ 
a  pilot;"  to  purchase  or  contract  for  the  fitting  out,  the 
victualing,  and  the  repairing  of  the  ship  for  the  voyage.^ 


*  Rev.  Stats.,  sec.  4131;  amended 
by  act  of  June  26,  1884,  c.  121,  sec.  1; 
23  Stats.  53. 

*  2  Parsons  on  Shipping,  4,  5. 

*  2  Parsons  on  Shipping,  4,  5.  He 
has  no  right  to  take  his  wife  and  child 
with  him  as  guests:  Marshall  v,  Craw- 
ford, 4  Saw.  37. 

*  String  V.  Hill,  Crabbe,  454. 

'  Montgomery  v.  Henry,  1  Dall.  49; 
1  Am.  Dec.  223. 

«  Ward  V.  Ruckman,  36  N.  Y.  26; 
98  Am.  Dec.  479. 

'AIcGilvery  v.  Stackpole,  38  Me. 
283;  61  Am.  Dec.  245;  Duncan  v. 
Reed,  39  Me.  415;  63  Am.  Dec. 
635. 

«The  Tribune,  3  Sum.  144;  Pro- 
vost V.  Patchin,  9  N.  Y.  239;  Jordan 


V.  Young,  37  Me.  276;  Reynolds  v. 
Toppan,  i5  Mass.  370;  8  Am.  Dec, 
110;  Swift  V.  Hall,  121  Mass.  280; 
Ward  V.  Green,  6  Cow.  173;  16  Am, 
Dec.  437;  Calef  v.  The  Bonaparte,  I 
Rob.  (La.)  463;  38  Am.  Dec.  190;  Mc- 
Lellan  v.  Cox,  36  Me.  95;  58  Am.  Doc. 
736. 

»  Malpica  v.  McKown,  1  La.  248;  20 
Am.  Dec.  279. 

'"  He  is  personally  liable  for  wages  of 
a  seaman  earned  while  he  is  master,  al- 
though the  seaman  was  hired  by  the 
former  master  of  the  vessel:  Smith  v. 
Oakes,  141  Mass.  451;  5F  Am.  Rep. 
487. 

"  Hight  V.  Robbins,  28  Mo.  168;  75 
Am.  Dec.  118. 

"  Provost  V.  Patchin,  9  N.  Y.  239, 


2554 

tizens  of  the 
to  a  certain 
lud  above  his 
irrv  a  certain 
d  to  an  extra 
e  line  of  his 
eneral  hiring 
be  discharged 
naster  who  is 
have  a  special 
,ster's  interest 
ity  interest  in 
at  their  pleas- 
en  the  voyage 
L  becomes  the 
he  wreck,  and 

36  of  an  agent 
matters  with- 
d  the  owner  13 
employment." 
a;'**  to  employ 
itting  out,  the 
r  the  voyage.'^ 

276;  Reynolds  v. 

370;  8  Am.  Dec. 
,  121  Mass.  280; 
Cow.  173;  16  Am, 

The  Bonaparte,  1 
Am.  Dec.  190;  Mc- 
e.  95;  58  Am.  Doc 

Lown,  1  La.  248;  20 

y  liable  for  wages  of 
lile  he  is  master,  al- 
was  hired  by  the 
he  vessel:  Smith  v. 
451;  55   Am.  Rep. 

ins,  28  Mo.  168;  75 

!hla,  9  N.  Y.  239. 


2555 


SHIPS    AND   SHIPPING. 


§1425 


He  has  a  right  to  imprison  a  sailor  for  disobedience  or 
mutinous  conduct.'  But  the  master  has  no  general  power 
of  buying  and  selling  for  the  owuer.'^  A  master  who  has 
instructions  to  sell  the  cargo  at  the  distant  port  has  au- 
thority, if  he  cannot  sell,  to  put  it  in  the  hands  of  an 
agent  there  to  sell.^ 

Illustrations. —  A  vessel  was  arrested  by  process  in  admi- 
ralty, issued  at  the  suit  of  the  master  and  another  person,  and 
her  voyage  and  employment  interrupted  until  she  was  released 
by  her  owners.  Held,  that  this  act  of  the  master  terminated 
his  employment:  Budge  v.  Molt,  47  Wis.  611.  The  engineer  of 
a  tug-boat  was  injured  by  an  explosion  on  the  boat  at  the  home 
port  of  Philadelphia.  The  officer  in  charge  summoned  a  phy- 
sician, who  attended  him  on  the  boat  and  at  his  own  house, 
whither  he  was  carried  at  his  own  request.  Held,  that  the 
owner  was  liable  for  the  physician's  services:  Holt  v.  CummingSf 
102  Pa.  St.  212;  48  Am.  Rep.  199. 

§  1426.    In  Gases  of  Necessity  and  Emergency.  —  In 

cases  of  necessity  or  emergency  the  master  has  a  very 
wide  authority.*  Thus  when  he  is  in  a  foreign  port,  and 
repairs  to  the  ship  become  necessary,  he  may  borrow 
r>oney  on  the  security  of  the  ship,  or  even  sell  it  it 
necessary.'  Under  the  same  circumstances,  he  may  sell 
part  of  the  cargo  to  raise  money  for  repairs^  or  to  prevent 
its  loss.'    But  if  the  necessity  is  not  absolute,  the  sale  by 


1  But  only  while  aboard  ship;  he 
cannot  imprison  him  on  shore:  Bud- 
dington  v.  Smith,  13  Conn.  334;  S.. 
Am.  Dec.  407.  Officers  of  a  steamboat 
have  no  right  to  beat  a  deck-hand,  nor 
put  him  ashore  for  insufficiency  at_an 
exposed  and  inhospitable  place:  Ki- 
ley  V.  Allen,  23  Fed.  Rep.  46. 

« Newhall  v,  Dunlap,  14  Me.  180; 
31  Am.  Dec.  45. 

»  Day  V.  Noble,  2  Picn.  615;  13  Am. 
Dec.  463. 

♦  Stearns  v.  Doe,  12  Gray,  482;  74 
Am.  Dec.  608. 

» Abbott  on  Shipping,  150,  160; 
Harned  v.  Churchman,  4  La.  Ann. 
310;  50  Am.  Dec.  573;  Rathbone  v. 
Neal,  4  La.  Ann.  563;  50  Am.  Dec. 
679;  Prince  v.  Ins.  Co.,  40  Me.  481; 


63  Am.  Dec.  676;  Fitz  v.  The  Amelia, 

2  Cliff.  444;  The  Herald,  8  Van.  409. 

6  The  Star  of  Hope,  9  Wall.  203; 
Benjamin  on  Sales,  sec.  18;  Gates  v. 
Thompson,  57  Me.  442;  99  Am.  Dec. 
782;  Stillman  v.  Hurd,  10  Tex.  109; 
Fontaine  v.  Ins.  Co.,  9  Johns.  30; 
Jordan  v,  Ins.  Co.,  1  Story,  342; 
Pope  V.  Nickerson,  3  Story,  500;  Tho 
Packet,  3  Mason,  255.  The  aale  at  a 
port  of  necessity  of  a  part  of  the  cargo 
for  repairs  does  not  create  a  lieu  on 
the  ship:  Buchanan  v.  Ocean  Ins.  Co., 
6  Cow.  330;  Am.  Ins.  Co.  v.  Chester, 

3  Paige,  332;  Depau  v.  Ocean  Ins.  Cp., 
5  Cow.  63;  15  Am.  Dec.  431. 

'  Butler  V.  Murray,  30  N.  Y.  88;  8(J 
Am.  Dec.  355. 


§  1425 


SHIPS   AND   SHIPPING. 


2556 


the  master  gives  uo  title,  though  he  acts  bona  fide}  The 
master  may  give  a  bottomry  bond  in  a  foreign  port  in  a 
case  of  necessity.^  If  he  has  the  means  of  doing  so,  and 
there  is  time  to  do  it,  he  must  communicate  with  the 
owners  for  instructions  before  selling  the  ship  or  cargo 
or  executing  a  bottomry  bond.^  "  Necessity  for  repairs 
and  supplies  is  proved  where  such  circumstances  of  exi- 
gency are  shown  as  would  induce  a  prudent  owner,  if 
present,  to  order  them,  or  to  provide  funds  for  the  cost 
of  them  on  the  security  of  the  ship."* 

Illustrations. —  A  vessel  in  distress  entered  a  port  from 
which  the  cargo  could  have  been  reshipped  in  another  vessel 
to  the  port  of  destination  at  a  less  expense  than  would  cost  for 
repairs.  Held,  that  the  master  had  no  authority  to  pledge  the 
cargo  without  consent  of  the  shipper  or  consignee:  The  Julia 
Blake,  107  U.  S.  418.  A  vessel  bound  from  Rio  de  Janeiro  to 
New  York  put  into  St.  Thomas  in  distress.  The  master,  to 
raise  money  to  repair  the  vessel,  gave  a  bottomry  bond  on  ves- 
sel, freight,  and  cargo.  He  knew  that  C,  at  Philadelphia,  was 
the  consignee  of  the  cargo,  but  made  no  communication  to  him 
or  to  the  shipper,  although  he  might  have  communicated  with 
both  by  telegraph.  Held,  that  the  bond  was  void  as  to  the 
cargo,  as  the  master  had  no  authority  to  give  it:  The  Julia 
Blake,  IG  Blatch.  472.  Action  by  the  owner  of  a  cargo  against 
the  owners  of  a  vessel  to  recover  for  the  contributory  share  of 
certain  jettisoned  cargo  and  expenses  chargeable  to  the  vessel 
and  freight  for  certain  bottomry  bonds.  In  a  general-average 
contribution  it  appeared  that,  the  vessel  and  freight  being  in- 
sufficient to  meet  this  contribution,  the  cargo  was  taken  for  the 
payment  of  the  deficiency,  and  the  owner  of  the  caro  claimedg 
indemnity  of  the  owners  of  the  vessel.  Held,  that  the  owners  of 
the  vessel  were  not  bound  by  the  acts  of  the  master,  it  being 
conceded  that  no  prudent  owner,  if  present,  would  have  made 
or  authorized  such  expensive  repairs  as  were  made  by  the 
master  without  any  special  authority;  Stirling  v.  Ncvassa 
Phosphate  Co.,  35  Md.  128;  6  Am.  Rep.  372. 


'  The  Joshua  Barker,  Abb.  Atlm. 
215;  Ins.  Co.  v.  The  Sarah  Ann,  13 
Pot.  .387;  Scillman  v.  Hunl,  10  Tex. 
109;  Ins.  Co.  V.  Center,  4  Wend.  45; 
Hall  V.  Ins.  Co.,  9  Pick.  466;  Robin- 
Boii  V.  lua.  Co.,  17  Me.  131;  .35  Am. 
Doc.  239;  Hassam  v.  Ins.  Co.,  7  La. 
AuQ.  11;  50  Am.  Dec.  591;  Gates  v. 


Tlionipson,  57  Me.  442;  99  Am.  Dec. 
782. 

^  Clark  V.  Laidlaw,  4  Rob.  (La.) 
345;  .39  Am.  Dee.  52G. 

»  Pike  V.  Balch,  38  Me.  .302;  Gl  Am. 
Dec.  248;  The  Amelia,  6  Wall.  IS; 
The  Guilio,  27  Fed.  Rep.  318. 

*  The  Grapeshot,  9  Wall.  129. 


2556 

bona  fide}  The 
)reign  port  in  a 
)f  doing  so,  and 
nicate  with  the 
e  ship  or  cargo 
sity  for  repairs 
Qstances  of  exi- 
udent  owner,  if 
ids  for  the  cost 


!red  a  port  from 
in  another  vessel 
an  would  cost  for 
rity  to  pledge  the 
iignee:  The  Julia 
lio  de  Janeiro  to 
The  master,  to 
tnry  bond  on  ves- 
^hiladelphia,  was 
lUnication  to  him 
nmunicated  with 
s  void  as  to  tho 
7e  it:    The  Julia 
f  a  cargo  against 
ributory  share  of 
able  to  the  vessel 
:  general-average 
freight  being  in- 
vas  taken  for  the 
he  caro  claimedg 
lat  the  owners  of 
master,  it  being 
'ould  have  made 
re  made  by  the 
iirig   v.  Nevassa 


).  442;  99  Am.  Dec. 

Haw,    4  Rol).    (La.) 

526. 

38  Me.  302;  Gl  Am. 
Amelia,  6  Wall.  IS; 
A.  Rep.  318. 
t,  9  Wall.  129. 


2557 


SHIPS   AND   SHIPPING. 


142G-1423 


§  1426.  Ship's  Husband.  — The  ship's  husband  is  a 
person  to  whom  the  owner  or  owners  of  a  ship  delegate 
the  management  of  her  while  she  is  at  the  home  port. 
He  is  the  general  agent  of  the  owners  in  regard  to  all  the 
affairs  of  the  ship  while  there,  such  as  repairs,  hirino- 
officers  and  crew,  aflfreightment,  etc'  He  has  no 'author*^ 
ity  to  purchase  a  cargo  on  account  of  the  owners.^  A 
ship's  husband  being  also  part  owner  cannot  by  mere 
virtue  of  such  relation  bind  the  co-owners  by  obtaining 
bail  for  the  release  of  the  vessel  from  seizure  under  civil 
process  for  collision  and  for  repair.* 

§  1427.  Supercargoes.  —  Supercargoes  are  persons 
employed  by  commercial  companies  or  private  mer- 
chants to  take  charge  of  the  cargoes  they  export  to 
foreign  countries,  and  to  sell  them  there  to  the  best 
advantage,  and  to  purchase  proper  commodities  to  relade 
the  ships  on  their  return  home.  They  usually  go  out 
with  the  ships  on  board  of  which  the  goods  are  embarked, 
and  return  home  with  them,  and  in  this  respect  only 
differ  from  factors  who  reside  abroad.''  Thus  they  are  a 
class  of  factors,  and  are  governed  in  their  rights,  responsi- 
bilities, and  powers  by  the  rules  of  law  governing  factors.' 

§  1428.  The  Seamen  —  Rights  and  Duties  of— Con- 
tracts with. — The  seamen  on  a  ship  are  entitled  to  food 
of  due  quality  and  in  sufficient  quantity;  they  are  entitled 
to  care  and  medicine  when  they  are  sick  or  have  been 
injured  in  the  course  of  their  duties.^  Statutes  prescribe 
the  form  of  contract  which  the  owner  or  master  may 
require   the  seaman  to  enter  into,  called  the  shipping 


'  Rapalje  and  Lawrence's  Law  Diet. ; 
Gillespie  v.  Winberg,  4  Daly,  318. 

'■'Hewett  V.  Buck,  17  Me.  147;  35 
Am.  Dec.  243. 

"  Mitchell  V.  Chambers,  43  Iklich. 
150;  38  Am.  Rep.  167. 

*  Beawes's  Lex  Mercatoria,  47. 

''  Story  on  Ageucy,  sec.  33.    As  to 


the  power  and  liabilities  of  factors,  see 
Title  I.,  Principal  and  Agent  —  Fac- 
tors. 

*"'  2  Parsons  on  Shipping,  75-80;  Pe- 
terson V.  Swan,  50  N.  Y.  46;  Scarff  v. 
Metcalf,  36  Hun,  202;  107  N.  Y.  21 U 
1  Am.  St.  Rep.  807. 


§1429 


SHIPS   AND    SHIPPING. 


2558 


articles.  And  no  stipulation  is  valid  which  is  inconsis- 
tent with  the  statutory  forms.^  And  outside  of  statutes, 
courts  of  admiralty  require  contracts  tending  to  the  dis- 
advantage of  a  seaman  to  be  strictly  proved,  and  his 
assent  strictly  shown."  But  the  articles  are  conclusive 
evidence  of  the  agreement.' 

§  1429.  Right  to  Wages. — The  seaman's  compensa- 
tion may  come  to  him  in  various  forms,  according  to  the 
agreement  he  makes  on  the  subject.  Thus  it  may  be- that 
he  receive  a  certain  proportion  of  the  freight  earned;  or 
that  he  receive  a  certain  sum  for  the  whole  voyage; 
or  that  he  share  in  the  profits  of  the  particular  venture; 
or  —  and  this  is  the  most  frequent  mode  —  that  he  shall 
be  paid  a  certain  amount  monthly  for  a  certain  period 
or  until  the  end  of  the  voyage.*  But  freight  is  the 
mother  of  wages.  Therefore,  where  the  freight  is  lost  by 
a  disaster  or  peril  arising  from  accident  or  superior  force, 
the  wages  of  the  seamen  are  not  recoverable,^  unless  they 
save  enough  of  the  cargo  to  pay  their  wages,"  or  unless  tlio 
loss  arise  through  the  fault  of  the  master  or  owner.'  Over 
the  subject  of  seaman's  wages  the  admiralty  has  an  un- 
disputed jurisdiction,  in  rem  as  well  as  in  personam;  and 
wherever  the  lien  for  the  wages  exists,  will  follow  the 
ship  into  what  hands  soever  she  may  come  by  title  or 
purchase  from  the  owner,  and  it  will  bind  the  freight  also, 
if  necessary,  as  against  assignees  with  notice.^  Services 
rendered  by  a  watchman  on  board  a  vessel  w^liile  she  lies 


^  Webb  V.  Duckingfield,  13  Johns. 
390;  7  Am.  Dec.  388.  The  statute  has 
no  application  to  contracts  whereby 
fishermen  bhip  for  shares  in  the  catch: 
The  Cornelia  M.  Kingaland,  25  Fed. 
Rep.  8,56. 

^The  Sarah  Jane,  Blatchf.  &  H. 
401. 

*  Johnson  v.  Dalton,  1  Cow.  543;  13 
Am.  Dec.  504;  The  Triton,  Blatchf.  & 
H.  282;  The  Sarah  Jane,  Blatchf.  & 
H.  401. 

*  Schouler   on   Personal  Property, 


sec.  315.  The  shipping  articles  con- 
trol as  to  the  amount  of  a  mariner's 
wages:  Johnson  v.  Dalton,  1  Cow. 
543;  13  Am.  Dec.  5(34. 

°  Van  Beuren  i\  Wilson,  9  Cow.  158; 
18  Am.  Dec.  491;  Stark  y.  Mueller, 
22  Fed.  Rep.  447. 

6  Daniels  v.  Ins.  Co.,  24  N,  V. 
449. 

'  Van  Beuren  v.  Wilson,  9  Cow.  blS; 
18  Am.  Dec.  491. 

*  Sheppard  v.  Taylor,  5  Pet.  Adm. 
G75. 


2558 

aich  is  inconsis- 
tside  of  statutes, 
nding  to  the  dis- 
proved, and  his 
s  are  conclusive 


nan's  compensa- 
according  to  the 
us  it  may  be  that 
'eight  earned;  or 
e  whole  voyage; 
articular  venture; 
3  —  that  he  shall 
a  certain  period 
t  freight  is  the 
freight  is  lost  by 
)r  superior  force, 
able,^  unless  they 
jes,"  or  unless  the 
or  owner.^  Over 
iralty  has  an  un- 
in  personam;  and 
,  will  follow  the 
Rome  by  title  or 
ithe  freight  also, 
Dtice.^  Services 
iel  while  she  lies 

shipping  articles  cnn- 
amouut  of  a  mariner's 
)ii  V.  Daltou,  1  Cow. 
3C.  5G4. 

I  V.  Wilson,  9  Cow.  15S; 
tOl ;    Stark  v.  Mueller, 

n. 

Ins.   Co.,   24   N.    V. 

V.  Wilson,  9  Cow.  l^S; 

1. 

'.  Taylor,  5  Pet.  Adm, 


2559 


SHIPS   AND   SHIPPING. 


§1430 


in  port  are  not  maritime  services,  and  the  compensation 
for  them  is  not  recoverable  in  admiralty.' 

§  1430.  What  is  and  What  is  not  a  Forfeiture  of 
Wages.  — The  wages  maybe  forfeited  by  the  bad  con- 
duct  of  the  seaman  justifying  his  discharge;^  or  by  his 
desertion  after  the  vessel  gets  to  port,  but  before  it  is  un- 
loaded;'  or  during  his  term;*  or  by  his  refusing  to  obey 
orders  which  will  justify  his  discharge.^  But  the  follow- 
ing have  been  held  not  a  good  ground  for  not  paying  the 
wages  of  the  seaman:  Dismissal  of  the  seaman  without 
cause  before  the  voyage  begins;"  keeping  him  unem- 
ployed  by  reason  of  the  ship  being  idle;'  impossibility  of 
performance  of  his  duties  caused  by  sickness,^  or  an  in- 

-lie  cruelty  or  illegal  act  of  the 


jury;''  desertion  caused  t^ 
master/" 


Illustrations.  —  A  second  mate,  while  reporting  a  seaman 
for  disobedience,  told  the  master  that  if  the  seaman  was  not 
discharged  he  himself  would  leave  the  ship.  The  master 
ordered  the  mate  to  go  to  his  room,  and  to  consider  himself 
under  arrest  for  mutinous  language.  Held,  that  the  mate  in 
leaving  the  ship  forfeited  all  claim  to  wages  due:  The  Alvcna, 
22  Fed,  Rep.  861.  Seamen,  disagreeing  with  the  master  as  to 
the  amount  of  wages  due  them,  were  ordered  to  go  to  work  or 
to  go  on  shore.  They  agreed  that  if  he  would  give  them  orders 
for  their  wages  they  would  go  ashore  and  regard  themselves  as 
discharged.  He  gave  them  the  orders  and  they  loft  the  vessel 
Held,  that  they  were  discharged,  and  were  not  deserters:  The 
Frank  C.  Barker,  19  Fed.  Rep.  332.  The  first  engineer  of  a 
yacht  in  port  was  discharged  in  the  middle  of  the  month,  with- 
out warning,  for  giving  an  insufficient  excuse  for  not  having 
ventilators  cleaned  as  ordered.  He  at  once  drew  the  fires,  al- 
though it  was  a  cold  winter's  day,  thus  endangering  the  yacht. 


'  McGinnis  v.  The  Grand  Turk,  2 
Pittsb.  Rep.  326. 

>*  Brightley'a  Federal  Digest,  tit. 
Seamen. 

3  Webb  V.  Duckingfield,  13  Johns. 
390;  7  Am.  Dec.  388. 

*  Spencer  v.  Eustis,  21  Me.  519;  38 
Am.  Dec.  277. 

*Tio3f.  Radovich,  10  La.  Ann.  101; 
63  Am.  Dec.  593.    See  The  Superior, 


22  Fed.  Rep.  927;  The  Alps,  19  Fed. 
Rep.  1.39. 

^  Parry  v.  The  Peggy,  2  Browne 
on  Civil  and  Admiralty  Law,  533. 

'  The  Alanson  Sumner,  28  Fed. 
Rep.  C70. 

®  2  Parsons  on  Shipping,  52,  53. 

»  The  Pacific,  23  Fed.  Rep.  154. 

'0  2  Parsons  on  Shipping,  52,  53:  The 
Two  Fannys,  28  Fed.  Rep.  285, 


1431,  1432  SHIPS  AND  SHIPPING. 


2560 


and  he  induced  the  first  and  second  assistant  3ngineers,  and 
all  hands  connected  with  his  department,  to  leave  the  yacht 
at  once.  Held,  that  neither  he  nor  the  first  or  second  assistant 
could  recover  pay  after  the  date  of  leaving  the  yacht:  The 
Yosemite,  18  Fed.  Rep.  331. 

§  1431.  Pilots  — Rights  and  Duties  of.  — "The  term 
'pilots'  is  equally  applicable  to  two  classes  of  persons, — 
to  those  whose  employment  is  to  guide  vessels  in  and 
out  of  ports,  and  to  those  who  are  intrusted  with  th© 
management  of  the  helm  and  the  direction  of  the  vessel 
on  the  voyage.  To  the  first  class,  for  the  proper  per- 
formance of  their  duties,  a  thorough  knowledge  of  the 
port  in  which  they  are  employed  is  essential,  with  its 
channel,  currents,  and  tides,  and  its  bars,  shoals,  and 
rocks,  and  the  various  fluctuations  and  changes  to  which 
it  is  subject.  To  the  second  class,  knowledge  of  an  en- 
entirely  different  character  is  necessary."  *  The  formei 
class  of  pilots  has  been  the  subject  of  statutory  regulation 
in  all  the  coast  states  and  by  the  federal  government. 

§   1432.     Liability  for  Repairs  and  Supplies.  —  Wo 

have  seen  that  the  master  has  authority  either  at  homo 
or  abroad  to  purchase  supplies  on  the  credit  of  the  vessel. 
There  is  a  lien  on  a  vessel  for  supplies  furnished  it  in  a 
foreign  port.^  The  port  of  a  sister  state  is  a  foreign  port.' 
The  home  port  of  a  vessel  is  where  the  owner  is.*  The 
owner  is  not  liable  for  supplies  furnished  after  ho  has 
sold  her,  if  she  has  passed  from  his  possession  and  em- 
ployment, although  she  is  mortgaged  to  him  and  remains 
enrolled  in  his  name.®  Nor  is  a  mere  mortgagee  or  pledgee 
liable  for  supplies."  "A  person  may  be  the  legal  owner 
of  a  vessel  and  have  her  registered  in  his  name  without 
being  liable  for  supplies  on  the  order  of  the  master;  but 

»  Paciiic  Mail  S.  S.  Co.  v.  Joliffe,  2  v.  The  Loper,  Taney,  500;   Case  v. 

Wall.  450.  WooUey,  6  Dana,  17;  32  Am.  Dec.  54. 

^  The  Emily  Souder,  17  Wall.  666.  *  Brooka  v.  Bondaey,  17  Pick.  441; 

»  Cohen  v.  Ins.  Co.,  Dud.  (S.  C.)  147;  28  Am.  Dec.  313. 

31  Am.  Dec.  549.  «  DnSv.  Bayard,  4  Watts  &  S.  240; 

^  The  May  Bell,  1  Saw.  135;  Pickell  39  Am.  Dec.  730. 


2560 

nt  3ngineers,  and 
leave  the  yacht 

f  second  assistant 
the  yacht:    The 


f.  — "The  term 
js  of  persons, — 
vessels  in  and 
rusted  with  tho 
Dn  of  the  vessel 
;he  proper  per- 
Lowledge  of  the 
lential,  with  its 
irs,  shoals,  and 
langes  to  which 
[edge  of  an  en- 
"  The  formei 
itory  regulation 
overnment. 

Supplies.  — Wo 

either  at  homo 
lit  of  the  vessel. 
irnished  it  in  a 
a  foreign  port.' 
iwner  is.^  The 
id  after  ho  has 
session  and  em- 
im  and  remains 
jagee  or  pledgee 
he  legal  owner 
3  name  without 
he  master;  but 

'aney,  500;   Case  v. 

17;  32  Am.  Dec.  54. 

idsey,  17  Pick.  441; 

I,  4  Watta  &  S.  240j 


2561  SHIPS  AND  SHIPPING.         §§  1433^  1434 

the  possession,  control,  and  management  of  her,  the 
right  to  direct  her  destination  and  receive  her  earn'ino-s 
will  fix  his  responsibility,  whether  he  has  the  legal  title 
or  not."  *  If  the  registered  owner  of  a  vessel  appoints  her 
master,  with  an  agreement  that  the  master  is  to  have  the 
entire  control  of  the  vessel,  and  victual  and  man  her,  and 
make  contracts  of  affreightment,  and  divide  the  gross 
earnings  with  the  owner,  the  owner  is  liable  on  contracts 
of  affreightment  made  by  the  master  with  the  shippers 
who  have  no  notice  of  the  arrangement  between  the 
master  and  the  owner.'' 

§  1433.  Employment  of  Ship—  General  Ship  —  Com- 
mon  Carriers.  —  The  owners  of  a  ship  may  use  it  for 
carrying  for  others,  in  which  event  they  become  carriers 
by  water,  and  subject  to  the  rules  as  to  the  liability  of 
common  carriers.' 

§  1434.  Charter-party.  —  Instead  of  employing  the 
ship  to  carry  goods  for  others,  it  may  be  let  out  to  others 
to  be  used  by  them.  This  may  be  done  either  by  a  let- 
ting of  the  ship  alone,  the  hirer  to  provide  all  equipments 
for  the  voyage,  or  by  letting  its  whole  capacity  only,  the 
owner  supplying  the  crew,  and  the  hirer  simply  being  en- 
titled to  the  use  of  the  vessel  to  himself  alone  for  his 
freight.  In  either  event,  such  a  letting  is  accomplished 
by  means  of  an  instrument  known  as  a  charter-party. 
The  owner  of  a  vessel  may  lease  it,  give  up  all  possession 
and  control,  reserving  only  rent,  and  in  that  case  the  lessee, 
although  the  lease  assumes  the  form  of  a  charter-party, 
becomes  the  owner  for  the  term.*  A  master  of  a  vessel  be- 
comes owner  pro  hac  vice,  and  not  a  partner  of  tlie  owner, 
where  he  sails  her  under  a  contract  at  the  halves,  he  to 


»  Lincoln  v.  Wright,  23  Pa.  St.  76; 
62  Am.  Dec.  316;  Ward  v.  Bodeman, 
1  Mo.  App.  372. 

'•*  Oakland  Cotton  Man.  Co.  v.  Jen- 
nings, 46  Cal.  175;  13  Am.  Rep.  209. 
161 


'  See  post,  Title  Bailments  —  Com- 
mon Carriers. 

*  Adams  v.  Homeyer,  45  Mo.  545; 
100  Am.  Dec.  391. 


§  1434 


SHIPS  AND   SHIPPING. 


2562 


victual  and  man  her,  and  the  owner  to  have  half  of  her 
earnings.'  A  vessel  may  be  hired  for  a  term  by  parol.^ 
Where  a  vessel  is  hired  without  any  limitation  of  time, 
it  is  a  hiring  for  every  voyage  commenced  before  notice 
by  the  owner  of  his  intention  to  abrogate  it.'  The  obli- 
gation is  implied  in  a  contract  of  hiring  that  the  vessel 
is  seaworthy  and  in  fit  condition  to  carry  the  particular 
cargo,  and  perform  the  service  for  which  she  is  hired  or 
engaged.*  But  a  warranty  of  seaworthiness  does  not  arise 
where  the  owner  is  kept  in  ignorance  of  the  vessel's  des- 
tination, of  the  service  in  which  she  is  to  be  engaged, 
and  the  use  to  which  she  is  to  be  put,  and  where  she 
is  selected  by  the  charterer  upon  an  actual  examination 
of  her  by  agents  and  their  favorable  report.^  The  master 
is  the  agent  of  the  owner,  who  is  liable  for  his  acts,  un- 
less the  whole  outfit,  master  and  seamen  included,  have 
been  engaged  by  the  charterer.^ 

The  owner  of  a  vessel  which  he  has  let  to  another  for 
a  voyage,  the  charter-party  stipulating  that  the  hirer  is 
to  have  entire  possession  and  control,  is  not  liable  for 
freight  shipped  on  that  voyage,  nor  for  wages  or  supplies, 
miless  he  holds  himself  outto  shippers  as  being  interested.^ 


'  Bridges  v.  Iron  Co.,  57  Me.  543; 
99  Am.  Dec.  788. 

'^  Tiiggarcl  V.  Loring,  16  Mass.  336; 
8  Am.  Ueo.  140;  Thompson  v.  Hamil- 
ton, 12  Pick.  425;  23  Am.  Dec.  619; 
Muggriilge  v.  Eveleth,  9  Met.  236.  A 
signal  for  a  tow-boat  and  her  arrival  in 
response  do  not  constitute  a  contract 
between  the  signaling  vessel  and  the 
tow  to  be  towed  to  her  place  of  des- 
tination: Clark  V,  Giffbrd,  7  La.  524; 
26  Am.  Dec.  511. 

»  Cutler  V.  Winsor,  6  Pick.  335;  17 
Am.  Dec.  385. 

*  Wood  V.  The  Wilmington,  5 
Hughes,  205;  Standard  Sugar  Kef.  Co. 
V.  The  Centennial,  2  Fed.  Rep.  409; 
The  Regiilus,  18  Fed.  Rep.  .380;  Sum- 
ner  v.  Caswell,  20  Fed.  Rep.  249. 

*  Richardson  v.  United  States,  20t. 
of  CI.  483. 

6  Purvis  V.  Tunno.  I  Brev.  259;  2 
Am.  Dec.  G64. 


^  Tuckerman  v.  Brown,  17  Barb.  191 ; 
Pitkin  V.  Brainerd,  5  Conn.  451;  l.S 
Am.  Dec.  79;  First  Nat.  Bank  r. 
Stewart,  26  Mich.  83;  Baker  v.  Huck- 
ins,  5  Gray,  196;  Thompson  v.  8iiow, 
4  Me.  264;  16  Am.  Dec.  263;  (lilus 
V.  Vigoreux,  35  Me.  300;  58  Am.  Doc. 
704;  McLellan  v.  Cox,  36  Me.  95;  58 
Am.  Dec.  737;  Holden  v.  French,  68 
Me.  241;  SheriflFs  v.  Pugh,  22  ^Vi9. 
273;  94  Am.  Dec.  600;  Leary  v.  U.  .S., 
14  Wall.  607,  the  court  saying:  "There 
is  no  doubt  that  under  some  forms  of 
a  charter-party  the  charterer  becomes 
the  owner  of  the  vessel  chartered  for 
the  voyage  or  service  stipulated,  an<l 
consequently  becomes  subject  to  the 
duties  and  responsibilities  of  owner- 
ship. Whether  in  any  particular  ease 
Bucn  result  follows  must  depend  upon 
the  terms  of  the  charter-party,  con- 
sidered in  connection  with  the  nature 
pf  tbe  service  rendered.     The  quesi 


2562 

ro  half  of  her 
rm  by  parol.^ 
ition  of  time, 
before  notice 
t.'  The  obli- 
bat  the  vessel 
the  particular 
he  is  hired  or 
does  not  arise 
3  vessel's  des- 

0  be  engaged, 
,nd  where  she 

1  examination 
'  The  master 
r  his  acts,  un- 
included,  have 

to  another  for 
,t  the  hirer  is 
not  liable  for 
es  or  supplies, 
ing  interested." 

Jrown,17Barb.  191; 
i,  5  Comi.  451;  13 
:rst  Nat.  Bank  r. 
83;  Baker  v.  Huck- 
rhompsou  V.  8no\v, 
tn.  Dec.  203;  (iilus 
6.  300;  58  Am.  Dec. 
Cox,  36  Me.  95;  58 
oldeu  V.  French,  G8 

V.  Piigli,  '22  Wia. 
600;  Leary  v.  U.  S., 
ourt saying:  "There 
mder  some  forms  of 
e  charterer  becomes 
iressel  chartered  for 
vice  stipuliited,  and 
imes  subject  to  the 
Lsibilities  of  owner- 
1  any  particular  case 
3  must  depend  upon 

charter-party,  con- 
;ion  with  the  nature 
udered.     The  quesi 


2563 


SHIPS   AND   SniPPINQ. 


§1434 


But  the  owners  can  be  relieved  by  nothing  short  of  an 
actual  demise  of  the  vessel  such  as  takes  from  them  all 
possession,  authority,  or  control.* 

Demurrage  is  a  sum  of  money  due  by  express  contract 
for  the  detention  of  a  vessel  in  loading  or  unloading  one 
or  more  days  beyond  the  time  allowed  for  that  purpose  in 
the  charter-party .'^  A  consignee  is  not  liable  for  demur- 
rage if  the  bill  of  lading  contains  no  provision  for  the  pjiy- 
ment  thereof;  and  certainly  not  if  he  assigns  the  bill  of 
lading  before  any  cargo  has  been  delivered.^  Demurrage 
cannot  be  recovered  for  an  unreasonable  delay  to  a  ves- 
sel in  discharging  her  cargo  when  such  detention  is  caused 
by  an  accidental  and  unexpected  accumulation  of  vessels 
at  the  same  dock,  where  all  must  discharge  and  each  in 
turn  does  discharge  her  cargo.* 

Illustrations.  —  Defendant  hired  the  plaintiff's  barge,  with 
captain  and  crew,  for  ten  months,  used  her  three  months,  and 
abandoned  her  at  a  dock,  where  she  remained  three  mouths, 


tion  as  to  the  character  in  which  the 
charterer  is  to  be  treated  is  in  all  cases 
one  of  construction.  If  the  charter- 
party  let  the  entire  vessel  to  the  char- 
terer, with  a  transfer  to  him  of  its 
command  and  possession,  and  conse- 
quent control  over  its  navigation,  he 
will  generally  be  considered  as  owner 
for  the  voyage  or  service  stipulated. 
But,  on  the  other  hand,  if  the  charter- 
party  let  only  the  use  of  the  vessel, 
the  owner  at  the  same  time  retaining 
its  command  and  possession,  and  con- 
trol over  its  navigation,  the  charterer 
is  regarded  as  a  mere  contractor  for  a 
designated  service,  and  the  duties  and 
responsibilities  of  the  owner  are  not 
changed.  In  the  first  case  the  charter- 
party  is  a  contract  for  the  lease  of  the 
vessel;  in  the  other,  itia  a  contract  for 
a  special  service  to  be  rendered  by  the 
owner  of  the  vessel.  In  examining 
the  adjudged  cases  on  this  subject, 
we  find  some  differences  of  opinion, 
especially  in  the  earlier  cases,  as  to 
the  effect  to  be  given  to  certain  tech- 
nical terms  used  in  the  charter-party 
iu  determining  whether  the  instru- 
ment parts  with  the  entire  possession 
and  control  of  the  y.eaael,  but  no  dif<^ 


ference  as  to  the  rule  of  law  applica1)le 
when  the  construction  is  settled.  All 
the  cases  agree  that  entire  command 
and  possession  of  the  vessel,  and  con- 
sequent control  over  its  navigation, 
must  be  surrendered  to  the  charterer 
before  he  can  be  held  as  special  owner 
for  the  voyage  or  other  service  men- 
tioned. The  retention  by  the  general 
owner  of  such  command,  possession, 
and  control  is  incompatible  with  tlie 
existence  at  the  same  time,  of  such 
special  ownership  in  the  charterer  ': 
Christie  v.  Lewis,  2  Brod.  &  B.  410, 
434;  Marcardier  v.  Chesapeake  Ins. 
Co.,  8  Cranch,  39,  49;  Schooner  Vol- 
unteer and  Cargo,  1  Sum.  551,  556; 
Drinkwater  v.  Freight  and  Cargo  of 
Brig  Spartan,  Ware,  149,  154;  Dona- 
hoe  V.  Kettell,  1  CUS.  135;  Holt  on 
Shipping,  461-471. 

>  Scarff  V.  Metcalf,  107  K  Y.  2L1; 
1  Am.  St.  Rep.  807. 

■•'  Wordin  v.  Bemis,  32  Conn.  208; 
85  Am.  Eec.  255. 

3  Gage  V.  Morse,  12  Allen,  410;  90 
Am.  Dec.  155. 

*  Wordin  v.  Beinis»  32  Conn.  2(Jg; 
85  Am.  Dec.  256. 


i 


§  1435 


SHIPS   AND   SHIPPING. 


25G4 


suffering  from  exposure.  The  plaintiff  notified  the  defendant 
that  unless  he  used  the  barge  the  plaintiff  would  do  so  for  the 
rest  of  the  term,  crediting  him  with  the  net  earnings.  Defend- 
ant made  no  response.  Held,  that  plaintiff  could  recover  tho 
amount  unpaid  on  tho  contract,  less  such  net  earnings:  Johnson 
V.  Meeker,  96  N.  Y.  93;  48  Am.  Rep.  609. 

§  1436.  Collisions.  —  For  the  avoidance  of  collisions 
between  vessels,  certain  rules  are  established  by  usage 
and  by  statute  which  must  be  observed  at  the  peril  of  tho 
owners.  If  a  collision  occurs  by  failing  to  observe  tho 
rules  as  to  navigation,  the  vessel  in  fault  is  liable  for  all 
the  damages  to  both  vessels;^  if  both  vessels  were  in  fault, 
the  loss  is  apportioned  between  them;''  if  neither  was  in 
fault,  the  damage  rests  where  it  fell.'  To  make  naviga- 
tion as  safe  as  possible,  uniform  rules  and  regulations 
have  been  adopted  by  nearly  all  the  maritime  nations 
and  have  been  sustained  by  the  courts.  Among  these 
are  the  following:*  A  vessel  in  motion  must  avoid  one 
moored  or  anchored;  ^    a  steam-vessel   must    alter  her 


'The  Carroll,  8  Wall.  302;  The 
Clara,  102  U.  S.  200;  The  Morgan  v. 
The  Zebra,  2  Hughes,  64;  The  Scrau- 
ton  V.  Emerald  Isle,  2  Ben.  25;  Yates 
V.  Brown,  8  Pick.  23;  Tho  Scioto, 
Daveis,  539;  McCrary  v.  The  Poulson, 
3  Hughes,  494;  Beyer  v.  The  Nurem- 
burg,  3  Hughes,  505;  Tho  Oler,  2 
Hughes,  12;  Knowltou  v.  Sanford,  32 
Me.  148;  52  Am.  Dec.  649;  Duggins 
V.  Watson,  15  Ark.  118;  60  Am.  Dec. 
561;  The  City  of  New  York,  15  Fed. 
Rei>.  624. 

H  The  Grey  Eagle,  9  Wall.  505;  The 
Catherine,  17  How.  170;  The  Conti- 
nental,  14  Wall.  345;  The  John  Henry, 
3  Ware,  264;  Lane  v.  The  Denike,  3 
Clifif.  117;  Bogga  v.  Parr,  3  Hughes, 
504;  The  Constitution,  Gilp.  579;  The 
Brothers,  2  Biss.  104;  Morrison  v. 
The  Petaluma.  1  Saw.  126;  The  Mon- 
ticello,  15  Fed.  Rep.  474;  The  City  of 
Merida,  24  Fed.  Rep.  229;  The  Stan- 
ford, 27  Fed.  Rep.  227;  The  Columbia, 
27  Fed.  Rep.  238;  Union  Steamship 
Co.  V.  Nottinghams,  17  Gratt.  115;  91 
Am.  Dec.  378. 

*  1  Parsons  on  Shipping,  548;  Broad- 
well  V.  Swgert,  7  B.  Mon.  39;  45  Am. 


Dec.  47;  The  Clarita,  23  Wall.  11; 
Stambackv.  Rae,  14 How.  532;  Sturgia 
V.  Boyer,  24  How.  110;  Duggins  v, 
Watson,  15  Ark.  118;  60  Am.  Doc. 
560;  Barrett  v.  Williamson,  4  McLean, 
589;  Jerome  v.  Floating  Dock,  3 
Hughes,  508;  Lucas  v.  The  Swan,  6 
McLean,  282;  Fashion  v.  Wards,  6 
McLean,  152;  The  Moxey,  Abb.  Adm. 
73. 

*  For  a  full  digest  of  the  cases  ou 
this  topic,  see  the  note  to  Baker  v. 
Lewis,  33  Pa.  St.  301,  in  75  Am.  Dec. 
598. 

"Simpson  v.  Hand,  6  Whart.  311; 
36  Am.  Dec.  231;  Knowlton  v.  San- 
ford,  .32  Me.  148;  52  Am.  Dec.  049; 
Baker  v.  Lewis,  33  Pa.  St.  301;  75 
Am.  Dec.  599;  Ginbert  v.  The  George 
Bell,  3  Hughes,  468;  Mills  v.  Tho 
Holmes,  1  Bond,  352;  The  Lady  Frank- 
lin,  2  Low.  220;  The  Merriniac,  14 
Wall.  199;  Bill  v.  Smith,  39  Conn, 
206;  Mercer  v.  The  Florida,  3  Hughes, 
488;  Commercial  Co.  v.  Dutton,  2 
Cliff.  537;  The  Palmetto,  1  Biss.  140; 
The  Omega,  13  Phila.  463;  The  Rock- 
away,  19  Fed.  Rep.  449;  The  Echo, 
19  Fed.  Rep.  453. 


2504 


25C5 


SHIPS  AND  snipriNO. 


§1430 


the  defendant 
1  do  80  for  the 
ngs.  Defend- 
d  recover  tho 
aings:  Johnson 

of  collisions 
ed  by  usage 
e  peril  of  tho 

observe  tho 
I  liable  for  all 
were  in  fault, 
either  was  iu 
nake  naviga- 
d  regulations 
time  nations 
Among  these 
ist  avoid  one 
1st    alter  her 

ita,  23  Wall.  11; 
How.  532;  Sturgia 
110;  Duggius  u. 
[18;  60  Am.  Dec. 
iamson,  4  McLean, 
floating  Dock,  3 
s  V.  The  Swan,  (i 
lion  V.  Wards,  6 
VIoxey,  Abb.  Adm. 

st  of  the  cases  ou 

note  to  Baker  v. 

n,  in  75  Am.  Dec. 

ttd,  6  Whart.  311; 

Knowlton  v.  San- 
52  Am.  Dec.  649; 
3  Pa.  St.  301;  75 
jert  V.  The  George 
168;  Mills  v.  Tho 
!;  The  Lad;/  Frauk- 
;he    Merrimac,   14 

Smith,   39  Conn. 

Florida,  3  Hughes, 

Co.  V.  Dutton,  2 
tnetto,  1  Biss.  140; 

a.  463;  The  Rock- 
p.  449;  The  Echo, 


course  to  avoid  a  sailing-vessel,'  and  must  keep  out  of 
tho  way  of  barges  propelled  with  oars.- 

Though  a  steamship  must  keep  out  of  tho  way  of  a  sail- 
ing-vessel, yet  it  is  tho  duty  of  tho  latter  to  hold  her 
course,"  and  not  to  luff,  tack,  or  change  her  cour.se  at  the 
time.'*  A  sailing-vessel  having  tho  wind  free  must  keep 
out  of  the  way  of  one  close-hauled.'  And  the  vessel  close- 
hauled  must  keep  on  her  course,  and  not  embarrass  tho 
one  having  tho  wind  free  in  keeping  out  of  her  way." 
Where  one  vessel  is  overtaking  another,  tho  former  must 
keep  out  of  the  way  of  the  latter.^  But  the  vessel  ahead 
must  keep  on  her  course,  and  not  change  it  unnecessarily.^ 
The  negligent  vessel  will  be  liable  if  the  other  sinks, 
although  proper  exertions  on  the  part  of  her  master  and 
crew  might  have  kept  her  afloat;"  nor  is  the  weakness  of 
the  injured  vessel  a  defense.*"  But  though  one  vessel  is 
iu  fault,  if  the  injured  one  could  have  avoided  the  collis- 
ion by  using  ordinary  care,  the  former  will  not  be  liable." 

§  1436.  Lights.  —  At  common  law  there  was  no  rule 
of  law  requiring  a  vessel  to  carry  a  light,  and  whether 


1  Saune  v.  Tourne,  9  La.  428;  29 
Am.  Dec.  452;  The  Benefactor,  102 
U.  S.  214;  The  Free  State,  91  U.  S. 
200;  Lord  v.  Hazeltine,  67  Me.  399; 
The  Osprey,  1  Sprague,  245;  The 
Favorite,  10  Biss.  536;  The  Illinois, 
103  U.  S.  298;  The  Cadiz,  20  Fed. 
Hep.  157;  The  New  Orleans,  8  Ben. 
101;  The  E.  H.  Coffin,  16  Blatchf. 
421. 

•^  Bigley  v.  Williams,  80  Pa.  St.  107. 
But  not  a  row-boat:  Philadelphia  etc. 
R.  II.  Co.  V.  Adams,  89  Pa.  St.  31;  33 
Am.  Rep.  721. 

^  The  Gerard  Stuyvesant,  8  Ben. 
183;  The  Harrisburg,  14  Phila.  499; 
TheRe8Cue,24Fed.  Rep.44;  The  Plym- 
outh, 26  Fed.  Rep.  879;  The  Carroll, 
8  Wall.  .302;  The  Scotia,  14  Wall.  170; 
The  Free  State,  91  U.  S.  200;  The  Il- 
linois, 103  U.  S.  298;  The  R.  B. 
Forbes,  1  Sprague,  328. 

•  The  Pilot,  20  Fed.  Rep.  80. 

^The  Blossom,  Olcott,  188;  The 
Argus,  Olcott,  304;  The  John  Stuart, 


4  Blatchf.  444;  The  Osseo,  16  Blatchf. 
537;  St.  John  v.  Paine,  10  How.  557; 
The  Catherine  v.  Dickinson,  17  How. 
170;  The  Erastua  Wiman,  20  Fed. 
Rep.  245. 

«  The  Argus,  Olcott,  304;  The  Jupi- 
ter,  1  Ben.  536;  Allen  v.  ^lackey,  1 
Sprague,  219;  The  Mary  Eveline,  16 
Wall.  348. 

'  Erwin  v.  Steamship  Co. ,  88  N.  Y. 
184;  The  Narragansett,  10  Blatchf. 
475;  The  W.  H.  Clark,  5  Bisw.  295; 
The  Peter  Ritter,  14  Fed.  Rep.  173. 

«  Tho  Grace  Girdler,  7  Wall.  196; 
The  Ellen  Holgate,  13  Phila.  470. 

»  Phares  v.  Stewart,  9  Port.  336;  33 
Am.  Dec.  317. 

10  Inman  v.  Funk,  7  B.  Mon.  538;  46 
Am.  Dec.  526;  Amoskeag  Mfg.  Co.  v. 
The  John  Adams,  1  Cliff.  419. 

"  Carlisle  v.  Holton,  3  La.  Ann.  48; 
48  Am.  Dec.  440;  Reese  v.  The  Mary 
Foley,  6  La.  Ann.  71;  54  Am.  Dec. 
557;  The  Farmer  jj.  McCraw,  26  Ala. 
189;  62  Am.  Dec.  718. 


8  1437 


SHIPS  AND  SniPPINO. 


2500 


the  omission  to  havo  a  light  was  negligence  or  not  was  & 
question  of  fact  in  each  case.*  But  by  statute  it  is  now 
obligatory  for  all  vessels  to  carry  certain  prescribed  lights. 
The  burden  is  upon  libelants  to  show  not  only  that  their 
lights  were  burning,  but  also  that  the  weather  was  such 
that  they  could  bo  seen  a  sufficient  distance  to  avoid  the 
collision."  The  fact  that  the  side-lights  of  a  sailing- 
vessel  could  have  been  seen  by  a  careful  lookout  from  a 
steamer  will  jiot  excuse  the  former's  neglect  to  exhibit  a 
torch  (as  required  by  the  United  States  Pevised  Statutes, 
section  4234),  which  might  have  prevented  the  collision.* 
But  a  schooner  failing  to  exhibit  a  lighted  torch,  as  re- 
quired by  law,  will  not,  because  of  the  omission,  be  held 
chargeable  with  a  collision  which  in  no  way  resulted 
from  such  omission.*  So  the  omission  to  carry  the  lights 
prescribed  by  law  does  not  of  itself  preclude  a  recovery 
for  damages  negligently  and  recklessly  produced  by  an- 
other vessel  running  upon  her  or  her  tow.'  A  vessel 
which  by  carrying  a  wrong  light  conveys  the  erroneous 
impression  that  she  is  at  anchor  is  liable  for  a  collision 
caused  by  her  error.®  When  a  collision  happens  on  a 
dark  night  between  a  steamer  and  a  sailing-vessel,  the 
mere  fact  of  such  collision  raises  no  presumption  of  neg- 
ligence against  the  steamer.  But  if  such  collision  occurs 
in  the  daytime,  and  in  good  weather,  it  may  be  presumed 
that  it  was  occasioned  by  her  fault.' 

§  1437.  Watches  and  Lookouts.  —  A  vessel  must 
keep  a  competent  and  vigilant  lookout  on  the  forward 
part  of  the  vessel.*    But  a  lookout  is  not  indispensable 


1  Carsley  v.  White,  21  Pick.  254;  32 
Am.  Dec.  259;  Rigers  v.  The  St. 
Charles,  19  How.  108;  The  Santa 
Claus,  1  Blatchf.  370.  But  see  Innis 
V.  The  Senator,  1  Cal.  460;  54  Am. 
Dec.  305;  Simpson  v.  Hand,  6  ViT'hart. 
311;  36  Am.  Dec.  231,  as  to  vessels 
moored  "in  harm's  way."  They 
should  carry  a  light. 

'  The  Florence  P.  Hall,  14  Fed.  Rep. 
408. 


»  The  Algiers,  21  Fed.  Rep.  343. 

♦  The  C.  Whiting,  14  Phila.  566. 

'  Hoflfmanv,  Union  Ferry  Co.,  47  N. 
Y.  176;  7  Am.  Rep.  435. 

•The  Conoho,  24  Fed.  Rep.  758. 

'  Union  Steamship  Co.  v.  Netting- 
hams,  17  Gratt.  115;  91  Am.  Deo. 
378. 

'  See  cases  cited  in  75  Am.  Dec. 
605;  The  Java,  14  Blatchf.  524;  The 
New  Orleans,  106  U.  S.  13. 


2566 


2567 


SHIPS  AND  SHTPPINO. 


1458 


not  was  0. 

it  is  now 

>od  lights. 

that  thoir 

•  was  such 

avoid  tho 

a  sailing- 

ut  from  a 

exhibit  a 

d  Statutes, 

collision.' 

)rch,  as  re- 

)n,  be  held 

ly  resulted 

J  the  lights 

a  recovery 

ced  by  an- 

'    A  vessel 

I  erroneous 

a  collision 

•pens  on  a 

;-vessel,  the 

ion  of  neg- 

sion  occurs 

9  presumed 

»ssel  must 
be  forward 
dispensable 

d.  Rep.  343. 
:  Phila.  566. 
erry  Co.,  47  N. 
5, 

I.  Rep.  758. 
?o.  V.  Notting. 
91    Am.  Deo. 

I  75  Am.  Dec. 
tchf.  524j  Tho 
.13. 


where  he  could  be  of  no  service,  or  whore  tho  officer  of 
the  dock  is  in  full  possession  of  all  tho  information  which 
a  lookout  could  give*  No  lookout  is  required  on  tho 
stern  of  a  vessel,"  except  when  a  steamer  u  backing  out 
of  a  slip.' 

§  1438.  Salvage— Wbat  the  Snbject  of— Salvage  is 
the  compensation  which  tho  maritime  law  allows  for  ser- 
vices rendered  in  saving  a  ship  or  its  cargo  from  peril.* 
Whore  a  vessel  answers  signals  of  distress,  and  goes  to  tho 
assistance  o*"  tho  distressed  ship,  and  supplies  provisions, 
and  carries  an  officer  from  her  to  a  place  where  ho  can 
obtain  assistance,  tho  service  la  a  salvage  ser\'ico.'  Prop- 
erty or  a  vessel  not  actually  in  peril,  and  saved  from  de- 
struction or  not  abandoned,  is  not  tho  subject  of  salvage;* 
nor  where  the  person  claiming  caused  the  peril,  as  whoro 
one  vessel  runs  down  another  by  its  fault.'  Saving  life 
without  property  gives  no  claim  for  salvage,  though  whoro 
both  are  present  tho  former  may  enhance  tho  amount 
which  will  bo  allowed.*  Tho  interest  of  those  who  havo 
acquired  a  claim  in  rem.  against  a  vessel  for  a  collision  is 
subject  to  the  right  and  claim  of  her  subsequent  salvors." 

Illustrations.  —  A  bark  having  been  abandoned  in  tho  ice,. 
Bomo  of  tho  crew  of  a  bark  imbedded  in  the  ico  near  by  visited 
tho  abandoned  bark  to  bring  stores  from  her.  Tho  ico  broke  up 
and  prevented  their  return  to  their  own  vessel.  With  tho  aid 
of  a  third  vessel  tho  abandoned  bark  was  saved.  Held,  that  tho 
service  rendered  by  these  men  was  a  salvage  service:  The  Mabel, 
22  Fed.  Rep.  543;  10  Saw.  501.  A  bark  laden  with  cotton 
and  anchored  outside  tho  bar  took  fire,  and,  as  tho  only  means 
of  saving  her,  she  was  towed  into  shallow  water  and  sunk  by 
persons  who  were  under  no  obligations  to  render  such  assistance. 
Held,  that  the  proceeds  of  the  sale  of  the  hull  and  cargo  were 


'  The  0«orge  Marny,  22  Fed.  Rep. 
117. 

»  Erwin  v.  S.  S.  Ca,  23  Him,  673; 
88  N.  Y.  184. 

» The  Nevada,  17  Blatchf.  122;  106 
U.  S.  154;  The  Kirkland,  3  Hughes, 
641. 

«The  Arendal,  14  Fed.  Rep.  680. 
The  word  is  also  applied  to  the  prop* 


erty  which  ia  saved  from  a  wrecked 
vessel. 

"  The  New  Orleans,  23  Fed.  Rep.  909. 

•Brightley's   Federal    Digest,   Sal- 
VMe;  The  Cleone,  7  Saw.  77. 

'Brightley's  FederalDigest,  749,750. 

'  Brightley's  Federal  Digest,  747. 

'The  Remnaata  of  the  Jeremiah,, 
10  Ben.  338. 


§1439 


SHIPS   AND  SHIPPING. 


2568 


the  measure  of  the  property  saved,  and  that  salvage  should  be 
allowed  on  that  basis:  The  Cochrane,  3  Woods,  304.  A  steamer 
disabled  by  the  breaking  of  her  propeller-shaft  made  signals  of 
distress  which  were  observed  by  another  steamer,  which  took 
her  in  tow,  and  after  towing  her  twelve  hours,  voluntarily  cast 
ofif  the  hawser  without  communication  with  her,  and  under  no 
stress  of  weather,  and  left  her  in  no  better  position  in  any  re- 
spect that  when  she  found  her.  Held,  neither  a  salvage  nor  a 
towage  service  for  which  any  compensation  should  be  made: 
The  Al{fitha,  17  Fed.  Rep.  551.  A  dry-dock  moored  to  the  bank 
of  the  Mississippi  River  was  run  into  and  a  hole  broken  in  its 
side.  Certain  tug-boats  pumped  it  out,  prevented  it  from  sink- 
ing, and  then  libeled  it  for  salvage.  Held,  that  it  was  not  a  sub- 
ject for  salvage  service:  Cope  v.  Vallette  Dry-Dock  Co.,  16  Fed. 
Rep.  924. 

§  1439.  Who  Entitlfid  to  Salvage. — As  a  general  rule, 
all  persons  who  were  not  bound  to  render  the  service  are 
entitled  to  salvage.  The  owner  of  a  ship  may  claim  com- 
pensation for  services  rendered  by  his  ship,  though  he 
was  not  present  at  the  time.*  Seamen  may,  when  their 
service  was  at  the  time  at  an  end,  and  what  they  did  was 
outside  the  line  of  their  duty.^  So  may  passengers;^  so 
may  pilots^  and  revenue  officers;®  a  corporation  chartered 
for  saving  vessels;"  a  fire  department.'^  A  service  is  not 
the  less  a  salvage  service  because  the  vessel  to  which  aid 
was  rendered  might  have  escaped  from  her  peril  unaided.* 
If  part  of  a  salvage  service  is  performed  by  one  set  of 
salvors  and  is  completed  by  another  set,  the  first  are 
entitled  to  salvage  pro  tanto,  although  they  alone  would 
not  have  saved  the  property.®  But  as  the  claimant  must 
not  have  been  under  a  legal  duty  to  perform  the  service, 
salvage  cannot,  as  a  rule,  be  claimed  by  the  master  or  the 
crew  of  the  saved  vessel.*"    Nor  can  a  vessel  by  a  breach 


»  The  Camanche,  8  Wall.  448.. 
'  Mason  v.  Blaireau,  2  Cranch,  240; 
The  Florence,  20  Eng.  L.  &  Eq.  607. 
^  2  Parsons  on  Shipping,  268. 

*  2  Parsons  on  Shipping,  268. 
^  2  Parsons  on  Shipping,  272. 

*  The  Camanche,  8  WiUl,  448, 
^  The  Blackwall,  10  WaU.  1. 

*  The  Mary  £.  Long,  14  Fhila,  698. 


•  In  re  Raft  of  Timber,  15  Fed.  Rep, 
555. 

"Brightley's  Federal  Digest,  749. 
The  fact  that  both  vessels  belong  to 
the  same  owner  furnishes  no  ground  of 
exemption  to  a  claim  for  salvage  com- 
pensation by  the  master  and  crew  of 
the  salving  vessel:  The  Colina,  6  Saw. 
181. 


2568 

alvage  should  be 
304.  A  steamer 
i  made  signals  of 
mer,  which  took 
,  voluntarily  cast 
er,  and  under  no 
)sition  in  any  re- 
:  a  salvage  nor  a 
ihould  be  made: 
ored  to  the  bank 
ole  broken  in  its 
ted  it  from  sink- 
it  was  not  a  sub- 
:)ock  Co.,  16  Fed. 


a  general  rule, 
the  service  are 
nay  claim  com- 
liip,  though  he 
ay,  when  their 
at  they  did  was 
passengers;^  so 
•ation  chartered 
^  service  is  not 
el  to  which  aid 
■  peril  unaided.^ 
1  by  one  set  of 
t,  the  first  are 
ey  alone  would 
I  claimant  must 
»rm  the  service, 
e  master  or  the 
sel  by  a  breach 

rimber,  15  Fed.  Rep. 

Federal  Digest,  749. 
th  vessels  belong  to 
imlsbes  no  ground  of 
aim  for  salvage  corn- 
master  and  crow  of 
.:  The  Colina,  5  Saw. 


2569 


SHIPS  AND  SHIPPING. 


5§  1440, 1441 


of  a  contract  with  another  vessel  put  the  latter  in  danger 
and  peril;*  nor  for  services  rendered  against  the  will  and 
protest  of  the  boat  saved;  nor  where  the  labor,  as,  for 
instance,  extinguishing  a  fire,  was  of  no  benefit.^ 

Illustrations. — A  bark  went  ashore  on  Clatsop  Beach, 
Oregon,  in  a  thick  fog,  and  was  deserted  by  her  crew  and 
master,  who,  within  two  days,  sold  her  for  whom  it  might  con- 
cern; but,  meanwhile,  she  was  taken  possession  of  by  M.,  who, 
with  his  skiff,  proceeded  to  save  her  apparc4  and  cargo.  Held] 
that  M.  was  entitled  to  maintain  possession  for  purposes  of  sal- 
vage until,  finding  his  means  therefor  ineffective,  others  offered 
to  assist  with  better  means,  whereupon  it  was  his  duty  to  yield 
them  possession:  The  Cairnsmore,  20  Fed.  Rep.  519.  A  tug 
responding  to  the  towage  signal  of  a  ship  drifting  in  the 
vicinity  of  a  conflagration  caused  by  an  exploded  oil-tank, 
hailed  the  mate:  "You  tell  the  captain  that  I  will  take  him  out 
for  one  thousand  dollars."  The  reply  came  back:  "Give  him 
a  line."  The  line  was  made  fast  and  the  ship  towed  across  the 
river.  Held,  a  salvage,  not  a  towage  service:  The  Young  Amer- 
ica, 20  Fed.  Rep.  926. 

§  1440.  Amount  of. — The  general  rule  is  to  allow  as 
salvage  about  one  third  of  the  value  of  the  property 
saved.' 

§  1441.  General  Averasre.  —  Generrl  average  is  "  a 
contribution  by  all  the  parties  in  a  sea  adventure  to 
make  good  the  loss  sustained  by  one  of  their  number  on 
account  of  sacrifices  voluntarily  made  of  part  of  the  ship 
or  cargo  to  save  the  residue  and  the  lives  of  those  on 
board  from  an  impending  peril,  or  for  extraordinary  ex- 
penses necessarily  incurred  by  one  or  more  of  the  parties 
for  the  general  benefit  of  all  the  interests  embarked  in 
the  enterprise.  Losses  which  give  a  claim  to  average  are 
usually  divided  into  two  great  classes:  1.  Those  which 
arise  from  sacrifices  of  part  of  the  ship  or  part  of  the 

»  The  Krona,  28  Fed.  Rep.  318.  Rep.  486;  TheNoto,  15  Fed.  Rep.  819; 

"  The  Choteau   i  Woods,  71.  The  Rialto,  15  Fed.  Rep.  124;    The 

»Brightley's  rtderal    Digest,    752  Alaska,  23  Fed.  Rep.  597;  The  Sybil, 

et  seq.     See  the  following  cases  on  5  Hughes,  228;  Coast  Wrecking  Co.  v, 

this  point:     The    Cyclone,  16  Fed.  Fhoeais  Ina.  Co.,  20  BlatchL  557. 


§1441 


SHIPS   AND   SHIPPING. 


2570 


cargo  purposely  made  in  order  to  save  the  whole  adven- 
ture from  perishing;  2.  Those  which  arise  out  of  ex- 
traordinary expenses  incurred  for  the  joint  benefit  of 
ship  and  cargo."  *  All  property  on  board  a  vessel  at  the 
time  of  a  jettison  is  liable  to  contribution,  except  that  at- 
tached to  the  persons  of  the  passengers.'  And  the  prop- 
erty saved  must  contribute,  though  it  is  afterwards  lost  by 
another  peril  in  the  course  of  the  voyage,^  Where  a  vessel 
is  voluntarily  stranded  to  save  it,  the  damage  to  it  is  a 
general-average  loss.*  So  where  there  is  a  jettison,  i.  e.,  the 
throwing  over  of  part  of  the  goods  to  save  the  rest,**  or 
where  masts,  spars,  and  rigging  have  been  cut  away  to 
save  ship  and  cargo.®  So  where  a  vessel  is  accidentally 
stranded,  and  by  labor  and  expense  is  floated  and  com- 
pletes her  voyage.' 

So  where  a  vessel  is  obliged  to  put  into  a  port  of  safety,  the 
wages  and  provisions  of  the  crew  from  the  time  she  headed 
for  that  port  until  she  sets  out  again  on  her  original  voyage 
are  the  subjects  of  general  average.*  But  where  a  vessel 
puts  into  a  port  of  distress,  and  there  transships  a  portion 
of  her  cargo,  the  freight  paid  the  substituted  bottom  is 
not  an  expense  or  loss  to  be  contributed  for  in  general 
average,  where  the  transshipment  is  made  for  the  purpose 
of  earning  full  freight.*     The  sacrifice  or  exposure  to 


1  The  Star  of  Hope,  9  Wall.  203. 
Toetzman  v.  Clamageran,  2  La.  195; 
22  Ani.  Dec,  127.  See  Title  Insur- 
ance, post,}  Marino  Insurance. 

»  Harris  v.  Moody,  30  N.  Y.  266; 
86  Am.  Dec.  375. 

*  Seudder  v.  Bradford,  14  Pick.  13; 
25  Am.  Dec.  355. 

*  The  Star  of  Hope,  9  Wall.  203; 
O'Connor  v.  The  Ocean  Star,  I  Holmes, 
248;  Fowler  v.  Rathbones,  12  Wall. 
10%  Patten  v.  Darling,  1  Cliff.  254; 
Fitzpatrick  v.  Bales  of  Cotton,  3 
Ben.  42;  Gray  v.  Wain,  2  Serg.  &  R. 
229;  7  Am.  Dec.  643;  Columbian  Ins. 
Co.  V.  Ashby,  13  Pet.  343;  Bevan  v. 
Bank,  4  Whart.  301;  33  Am.  Deo. 
64. 


^  Maggrath  v.  Church,  1  Caines,  198; 
2  Am.  Dec.  173. 

«The  Mary  Gibbs,  22  Fed.  E«p. 
463. 

^  Bedford  Com.  Ins.  Co.  v.  Parker, 
2  Pick.  1;  13  Am.  Dec.  388. 

^  Walden  v.  Leroy,  2  Caines,  263; 
2  Am.  Dec.  236;  The  Star  of  Hope,  9 
Wall.  236;  Barker  v.  Phoenix  Ina. 
Co.,  8  Johns.  307;  5  Am.  Dec.  339; 
Hause  v.  Ins.  Co.,  10  La.  1;  29  Am. 
Dec.  456;  Barkers.  R.  R.  Co.,  22 Ohio 
St.  45;  10  Am.  Rep.  726.  And  ex- 
penses of  the  crow  in  getting  to  and  ro- 
maining  at  a  port  for  repairs:  Union 
Ins.  Co.  V.  Cole,  18  111.  App.  413. 

*  Hugg  V.  Baltimore  etc.  Minlqg 
Co.,  35  Md.  414;  6  Am,  Rep.  425. 


2570 

3  whole  adven- 
rise  out  of  ex- 
>int  benefit  of 
a,  vessel  at  the 
except  that  at- 
And  the  prop- 
jrwards  lost  by 
Where  a  vessel 
lage  to  it  is  a 
ittison,  i.e.,the 
7e  the  rest,'  or 
n  cut  away  to 
is  accidentally 
ated  and  com- 

rt  of  safety,  the 
me  she  headed 
►riginal  voyage 
where  a  vessel 
ihips  a  portion 
Lted  bottom  is 
for  in  general 
or  the  purpose 
r  exposure  to 

lurch,  1  Caines,  196; 

)bs,   22  Fed.   B«p. 

Ins.  Co.  V.  Parker, 
Dec.  388. 

oy,  2  Cainea,  263; 
'he  Star  of  Hope,  9 
r  V.  PhcBnix  Ins. 
;  5  Am.  Dec.  339; 

10  La.  1;  29  Am. 

R.  R.  Co.,  22  0hio 
ep.  726.  And  ex- 
n  getting  to  and  ro- 

for  repairs:  Union 

111.  App.  413. 
moro    etc.   Minii)g 
Am,  Rep.  425. 


2571 


SHIPS   AND   SniPPING. 


§  1441 


danger  must  have  been  voluntary.^  It  must  have  been 
reasonably  necessary .^  It  must  have  been  for  the  com- 
mon benefit.'  And  the  sacrifice  must  have  been  success- 
ful.  If  the  loss  was  not  averted,  but  merely  delayed  there 
is  no  ground  for  general  average.^  And  there  must  have 
been  at  the  time  a  possibility  of  saving  the  property' 
Thus  where  a  vessel  containing  lime  was  scuttled  to  save 
it,  it  was  held  that,  as  the  lime  was  of  no  value  after  it  had 
been  put  in  the  water,  it  was  not  a  case  for  general  average « 
No  contribution  is  allowed  for  goods  shipped  on  deck 
and  jettisoned."  But  the  rule  exempting  deck  cargoes 
from  general  average  does  not  apply  where  a  vessel  ia 
built  with  a  view  of  carrying  part  of  her  cargo  on  deck, 
and,  when  so  loaded  by  custom  of  trade,  is  compelled  by 
a  peril  of  the  sea  to  jettison  part  of  her  deck-load.*  A 
general  average  fairly  settled  in  a  foreign  port  is  conclu- 
sive.'  The  master  has  a  lien  upon  goods  liable  for  con- 
tribution.'"  It  is  a  defense  to  an  action  on  a  general 
average  bond  that  the  loss  was  caused  by  the  vessel  being 
unseaworthy." 

Illustrations.  —  A  portion  of  a  vessel's  spars  and  sails  were 
blown  overboard  by  a  gale,  and  lay  alongside  the  vessel,  pound- 


» The  Star  of  Hope,  9  Wall.  203; 
Walkers.  U.  S.  Ina.  Co.,  11  Serg.  &R. 
61;  14  Am.  Dec.  610;  Rathboues  v. 
Fowler,  6  Blatchf.  294;  12  Wall.  102; 
Crockett  v.  Dodge,  12  Me.  190;  28  Am. 
Dec.  170;  Meechw.  Robinson,  4  Whart. 
360;  34  Am.  Dec.  514. 

» The  Star  of  Hope,  9  Wall.  203; 
Walker  w.  U.  S.  Ins.  Co.,  11  Serg.  &  R. 
61;  14  Am.  Dec.  610;  Rathbonea  v. 
Fowler,  6  Blatchf.  294;  12  Well.  102; 
Crocket  v.  Dodge,  12  Me.  190;  28  Am. 
Dec.  170;  Meech  v.  Robinson,  4  Whart. 
360. 

8  Brightley's  Federal  Digest,  67,  68. 

« Scudder  v.  Bradford,  14  Pick.  13; 
25  Am.  Dec.  355. 

*  Meech  v.  Robinson,  4  Whart.  360; 
U  Am.  Dec.  514. 

«  Crockett  v.  Dodge,  12  Me.  190;  28 
Am.  Dec.  170. 

'Smith  V.   Wright,    I  Caines,  43; 


2  Am.  Dec.  162;  Gillett  v.  Ellis,  11 
ni.  579;  Dodge  v.  Bartol,  5  Me.  286; 
17  Am.  Dec.  233;  The  Rebecca,  1 
Ware,  211;  Lawrence  v.  Minturn,  17 
How.  114;  The  Delaware,  14  Wall 
604;  Cram  v.  Aiken,  13  Me.  229;  29 
Am.  Dec.  503;  Doane  v.  Keating,  12 
Leigh,  391;  37  Am.  Dec.  671;  Sproat 
V.  Donnell,  26  Me.  185;  45  Am.  Dea 
103. 

8  The  Hettie  Ellis,  20  Fed.  Rep. 
507;  Harris  v.  Moody,  30  N.  Y.  266; 
86  Am.  Dec.  375. 

•Lewis  V.  Williams,  1  Hall,  448; 
Peters  v.  Ins.  Co.,  3  Sum.  393;  1 
Story,  471;  Depau  v.  Ins.  Co.,  5  Cow. 
63;  15  Am.  Dec.  431. 

"  Chamberlin  v.  Reed,  13  Me.  357j 
29  Am.  Dec.  506. 

"  Cheraw  etc.  R.  R.  Co.  v.  Broad- 
nax,  109  Pa.  St.  432;  58  Am.  Ren 
733. 


§1442 


SHIPS   AND   SHIPPING. 


2572 


ing  against  her  side,  but  secured  to  htr  by  the  rigging.  The 
gale  continuing,  the  spars  were  cut  adrift  in  order  to  prevent 
them  from  pounding  a  hole  in  the  vessel's  side.  Held,  that  the 
cargo  must  contribute  to  the  loss  sustained  by  their  sacrifice: 
The  Margnrethe  Blanca,  14  Fed.  Rep.  59.  A  bark,  being  in  in- 
evitable danger,  without  her  fault,  of  collision  with  a  steamer, 
changed  her  course  so  as  to  strike  the  steamer  stem  on,  thereby 
probably  saving  herself  from  being  sunk  with  her  cargo.  In  con- 
Bcquence  of  the  collision,  she  was  obliged  to  go  for  repairs  into 
port  of  a  country  where  the  duty  of  a  steamer  to  keep  out  of  the 
way  of  a  sailing-vessel  was  not  recognized,  and  where  she  was 
compelled,  at  the  suit  of  the  owner  of  the  steamer,  by  a  decree 
of  court,  to  bear  half  the  damage  to  both  vessels,  and  therefore 
to  pay  a  certain  sum  to  the  steamer.  In  a  suit  in  equity  by 
the  owner  of  the  bark  against  the  owners  of  her  cargo  for  con- 
tribution, held,  that  neither  the  expenses  of  the  repairs  ren- 
dered necessary  by  the  collision,  nor  the  sum  paid  to  the 
steamer,  nor  the  costs  of  defending  the  suit,  was  a  subject  for 
general  average:  Emrey  v.  Huntington,  109  Mass.  431;  12  Am. 
Rep.  725.  A  fire  in  a  vessel  at  a  city  wharf  is  extinguished  by 
the  city  fire  department,  acting  under  municipal  authority, 
and  not  at  the  request  or  direction  of  the  ship-master.  Held, 
that  the  cargo  saved  is  not  liable  to  contribute  to  a  general- 
average  loss:  Wamsutta  Mills  v.  Old  Colony  Stbt.  Co.,  137  J^Iasa. 
471;  50  Am.  Rep.  325. 

§  1442.  The  Admiralty  Jurisdiction. — The  maritime 
law  is  operative  in  any  country  so  far  only  as  it  is  adopted 
by  the  laws  and  usages  of  that  country.  In  this  respect 
it  is  like  international  law  or  the  laws  of  war,  which  have 
the  effect  of  law  in  no  country  any  further  than  they  are 
accepted  and  received  as  such;  or  like  the  case  of  the  civil 
law,  which  forms  the  basis  of  most  European  laws,  but 
which  has  the  force  of  law  in  each  state  only  so  far  as  it 
is  adopted  therein,  and  with  such  modifications  as  are 
deemed  expedient;  or  like  the  adoption  of  the  common 
law  by  the  several  states  of  the  Union,  which  is  the  basis 
of  the  state  laws,  but  is  modified  as  each  sees  fit.  Each 
sovereign  power  adopts  the  maritime  law,  not  as  a  code 
having  any  independent  or  inherent  force  propria  vigore, 
but  as  its  own  law,  with  such  modifications  and  qualifi- 
cations as  it  sees  fit.    Thus  adopted  and  thus  qualified  in 


2572 

^  the  rigging.    The 
1  order  to  prevent 
ie.    Held,  that  the 
by  their  sacrifice: 
bark,  being  in  in- 
on  with  a  steamer, 
r  stem  on,  thereby 
her  cargo.    In  con- 
go  for  repairs  into 
rto  keep  out  of  the 
.nd  where  she  was 
jamer,  by  a  decree 
sels,  and  therefore 
suit  in  equity  by 
her  cargo  for  con- 
f  the  repairs  ren- 
sum  paid   to  tlie 
was  a  subject  for 
lass.  431;  12  Am. 
s  extinguished  by 
nicipal  authority, 
lip-master,     ffdd, 
ute  to  a  general- 
tbt.  Co.,  137  I^Iass. 


-The  maritime 
'■  as  it  is  adopted 
In  this  respect 
svar,  which  have 
3r  than  they  are 
case  of  the  civil 
opean  laws,  but 
•nly  so  far  as  it 
fications  as  are 
of  the  common 
lich  is  the  basis 
sees  fit.  Each 
,  not  as  a  code 
3  propria  vigore, 
ns  and  qualifi- 
lus  qualified  in 


2573 


SHIPS   AND   SHIPPING. 


§1442 


each  case,  it  becomes  the  maritime  law  of  the  particular 
nation  that  adopts  it.  And  without  such  voluntary  adop- 
tion it  would  not  be  law;  and  it  can  have  the  offoct  of  law 
in  any  country  so  far  only  as  it  is  permitted  to  have  «■ 
The  admiralty  jurisdiction  of  the  United  States  courts 
extends  not  only  over  the  ocean,  and  where  the  tide  ebbs 
and  flows,— as  was  the  English  law,— but  includes  all  the 
waters  of  the  United  States  which  are  actually  navigable, 
whether  so  by  nature  or  by  artificial  improvement.^  By 
the  federal  judiciary  act,  it  is  provided  that  the  district 
courts  of  the  United  States  "  shall  have  exclusive  cogni- 
zance  of  all  civil  causes  of  admiralty  and  maritime  juris- 
diction,  ....  saving  to  suitors  in  all  cases  the  right  of 
a  common-law  remedy,  where  the  common  law  is  compe- 
tent  to  give  it."^  State  courts  have  no  jurisdiction  of  an 
action  against  a  vessel  by  name."  As  to  the  concurrent 
jurisdiction  of  the  state  courts,  the  rule  is,  that  they  may 
exercise  it  in  cases  of  which  the  cognizance  was  concur- 
rent in  the  courts  of  common  law  previous  to  the  consti- 
tution;^ and  the  enforcement  of  a  lien  created  by  state 
laws  for  labor  performed  and  materials  furnished  in 
building  vessels  belongs  exclusively  to  state  tribunals.^ 
A  state  court  may  take  cognizance  of  a  suit  against  a 
master  and  owner  of  a  vessel,  where  it  is  brought  under  a 
state  statute,  by  action  in  personam  and  for  sequestration, 
to  enforce  a  claim  secured  by  lien  not  created  by  mari- 
time law,  and  not  exclusively  within  the  jurisdiction  of  an 


>  The  Lottawanna,  21  Wall.  558. 

*  Waring  v.  Clarke,  5  How.  441 ; 
The  Genessee  Chief  v.  Fitzhugh,  12 
How.  443;  Jackson  v.  James,  20  How. 
296. 

»  U.  S.  Rev.  Stats.,  sec.  563;  Wal- 
ters V.  The  MoUie  Dozier,  24  Iowa, 
192;  95  Am.  Dec.  722;  Phegley  v.  The 
David  Tatum,  33  Mo.  461;  84  Am. 
Dec.  57;  The  Hine  v.  Trevor,  4  Wall. 
555;  McAllister  v.  The  Sam  Kirkham, 
1  Boud,  369;  The  Norfolk,  2  Hughes, 
i2a. 


*Griswold  v.  Steamboat  Otter,  12 
Minn.  465;  93  Am.  Dec,  239. 

*  The  Isabella,  Brown  Adm.  96. 

*  Randall  v.  Roche,  30  N.  J.  L.  220; 
82  Am.  Dec.  233;  Thorson  v.  Schooner 
J.  B.  Martin,  26  Wis.  488;  7  Am. 
Rep.  91;  Foster  v.  Richard  Bustfed, 
100  Mass.  409;  1  Am.  Rep.  125;  Shep- 
pard  V.  Steele,  43  N.  Y.  52;  3  Am. 
Rep.  660;  Sinton  v.  Steamboat  Rob- 
erts, 34  Ind.  448;  7  Am.  Rep.  229; 
Scow  Tuttle  V.  Buck,  23  Ohio  St.  565; 
13  Am.  Rep.  270. 


§1443 


SHIPS  AND   SHIPPINO. 


2574 


admiralty  court.^  As  to  the  subject-raatier  of  admiralty- 
jurisdiction,  the  admiralty  jurisdiction  extends  "to  all 
contracts,  claims,  and  services  essentially  maritime, 
amongst  which  are  bottomry  bonds,  contracts  of  af- 
freightment, and  contracts  for  the  conveyance  of  passen- 
gers, pilotage  on  tho  high  seas,  wharfage,  agreements  of 
consortship,  surveys  of  vessels  damaged  by  the  perils  of 
the  sea,  the  claims  of  material-men  and  others  for  the 
repair  and  outfit  of  ships  belonging  to  foreign  nations  or 
to  other  states,  and  the  wages  of  mariners;  and  also  to 
civil  marine  torts  and  injuries,  among  which  are  assaults 
and  oth"^  personal  injuries,  collision,  spoliation,  and  dam- 
age, i  :.'  seizures  or  other  depredations  on  property, 
illegal  v^io^iossession  or  withholding  of  possession  from 
the  owners  of  ships,  controversies  between  the  part  own- 
ers as  lo  t.  '  en.j^  \.yment  of  ships,  municipal  seizures  of 
ships,  and  cases  of  salvage  and  marine  insurance." '^ 

Illustrations.  —  Plaintiff's  property  was  injured  through 
defendant's  negligence  while  the  latter  was  transporting  it 
across  the  St.  Lawrence  River.  Held,  that  a  state  court  had 
jurisdiction  of  the  action:  Baird  v.  Daly,  57  N.  Y.  236;  15  Am. 
Rep.  488.  An  attachment  was  issued  against  a  vessel  navigat- 
ing the  Yazoo  and  Mississippi  rivers,  to  recover  for  repairs. 
These  rivers  were  navigable  by  vessels  of  ten  tons  burden  and 
upwards  from  the  sea.  The  vessel  was  a  steamboat  owned  and 
having  her  home  port  in  Mississippi.  Held,  that  the  vessel  was 
within  the  maritime  jurisdiction  of  the  United  States;  that  the 
state  courts  had  no  jurisdiction  of  the  subject-matter,  and  could 
not  be  invested  with  such  jurisdiction  by  the  legislature  of  the 
state:  Dever  v.  Steamboat  Hope,  42  Miss.  715;  2  Am.  Rep.  643. 

§  1443.    Jurisdiction  —  Torts  on  the  High  Seas.  —  The 

courts  of  this  country  have  jurisdiction  in  cases  of  torts 
committed  on  the  high  seas,  even  on  board  a  foreign  ves- 
sel and  between  citizens  of  foreign  countries.'    But  in 


*  state  V.  Voorhies,  39  La,  Ann.  499; 
4  Am.  St.  Rep.  274. 

*  Mr.  Justice  Clifford,  in  Ex  parte 
Easton,  95  U.  S.  72.  See  note  to 
Keating  v.  Stone,  3  Ohio  St.  105,  in  62 
Am.  Dec.  234-246. 


'  Percival  v.  Hickey,  18  Johns.  257; 
9  Am.  Dec.  210;  Johnson  v.  Daltoii, 
1  Cow.  543;  13  Am.  Dec.  564;  The 
Pacific,  Blatchf.  &  H.  187;  Davis  v. 
Leslie,  1  Abb.  Adm.  183. 


2574 

ler  of  admiralty 
extends  "to  all 
tially    maritime, 
contracts   of   af- 
yance  of  passen- 
3,  agreements  of 
by  the  perils  of 
1  others  for  the 
reign  nations  or 
3rs;  and  also  to 
lich  are  assaults 
iation,  and  dam- 
is  on  property, 
possession  from 
a  the  part  own- 
5ipal  seizures  of 
surance.'"* 

injured  through 
I   transporting  it 

1  state  court  had 
.  Y.  236;  15  Am. 
a  vessel  navigat- 
over  for  repairs, 
tons  burden  and 
aboat  owned  and 
lat  the  vessel  was 
States;  that  tlie 
latter,  and  could 
egislafcure  of  the 

2  Am.  Rep.  643. 

rh  Seas.  — The 
1  cases  of  torts 
I  a  foreign  ves- 
tries.'   But  in 

ikey,  18  Johns.  257; 
Johnson  v.  Dalton, 
^m.  Dec.  564;  The 
H.  187;  Davis  v. 
Q.  183. 


2575 


SHIPS   AND   SHIPPIXO. 


§1443 


case  of  foreigners,  the  jurisdiction  is  discretionary,  and 
our  courts  may  remit  them  to  their  own  tribunals.'^  A 
proceeding  in  rem  against  a  vessel  for  the  recovery  of 
damages  for  a  maritime  tort  can  be  enforced  only  by  the 
courts  of  the  United  States.'' 

*  Mason  v.  Blaireau,  2  Cranch,  24(h  *  Yonnt?  r  Rliin  P..;„«~,„  t>  i  «« 
Gardner  «  Thomas,  14  Johns.  136,  7  La.  lr^3i;^2lm  'grT^''^'  "" 
Am.  Dec.  44a. 


INDEX. 


INDEX. 


[This  brief  Index  will,  It  is  hoped,  bo  foimd  sufficient  for  Immediate  ubo.    A  com- 
prehensive iniiex  to  the  entire  work  will  bo  niado  ou  its  completion,  f 

Abandonment. 

titlo  to  chattels  on  abandonment  by  owner p.  2384,  §  1310 

wrecks  and  abandoned  vessels p.  2389,  §  1312 

Abatement.    See  NuiaA:(7CE. 
Accession. 

title  by p.  2393,  §  1316 

where  defendant  a  trespasser p.  2394,  §  1316 

where  defendant  not  a  »/rong-doer p.  2395,  §  1317 

Accident. 

person  not  civilly  liable  for pp.  1717-1719,  §  1013 

fire-arms  accidentally  going  oflf p.  1718,  §  1013 

Action. 

remedy  by  action pp.  1700,  1/07,  §  1040 

Annuities. 

defined  and  illustrated ^ , p,  2430,  §  1341 

Arrest.    See  False  Imprisonment. 
Attorney  and  Client. 

advice  of  counsel  aa  a  defense  in  malicious  prosecution ...  .p.  1880,  §  1096 
Animals.    See  also  Railroads. 

wild  and  tame  animals p.  2471,  §  1365 

tamo  animals  subject  of  property p.  2471,  §  1366 

cats  subject  of  property p.  2471,  §  1366 

dogs  subject  of  property p.  2471,  §  1366 

peacocks  subject  of  property p.  2471,  §  1366 

turkeys  subject  of  property p.  2471,  §  1366 

birds  subject  of  property p,  2471,  §  K  fio 

wild  animals  not  property  until  tamed  or  captured,  .pp.  2472-2475,  §  13G7 

pursuit  alone  insuflBcient p.  2475,  §  1368 

captured  animal  regaining  liberty p.  2476,  §  1369 

right  to  increase  of  animals p.  2476,  §  1370 

regulation  of  keeping  animals  by  statute p.  2477,  §  1371 

action  for  taking  or  detaining  animal p.  2478,'§  1372 

action  for  killing  or  injuring  animal p.  24T9,  §  1373 

defenses,  killing  ferocious  animal p.  2480,  §  1374 

defenses,  killing  animal  in  defense  of  person..,.. p.  2481,  §  1375 


IV 


INDEX. 


Animals  (Continued). 

defenses,  killing  animal  in  defense  of  ][)roi)erty p. 

defenses,  killing  animal  which  is  a  nuisance p. 

defenses,  statute  authority  for  killing  animals p. 

defenses,  killing  or  injuring  trespassing  animals p. 

rights  and  liabilities  of  finders  of  animals p. 

liability  of  owner  or  keeper  of  animal pp.  2401- 

acts  of  servants p. 

Injuries  by  wild  and  tame  animals,  distinction p. 

injuries  by  tame  animals,  liability  of  owner p. 

proof  of  scienter p. 

liability  enlarged  by  statute p. 

contributory  negligence  of  person  injured p. 

contributory  negligence  of  children p. 

where  x)laintiff  a  trespasser,  right  to  keep  watch-dogs p. 

negligence  in  driving  or  securing  animals p. 

owner  bound  to  give  notice  of  animal's  vice p. 

liability  for  trespasses  of  animals p. 

driving  cattle  on  highway p. 

keeping  diseased  animals p. 

selling  diseased  animals ^ p. 

Blasting.     Soo  Nkgligenob. 
Burial.     See  Cioietebies. 
Cats. 

subjects  of  prox>erty p. 

action  for  injury  or  killing p. 

keeping  of  by  warehouseman  evidence  of  care p.  2471, 

same  as  to  carriers  by  water .p.  2471, 

Cemeteries. 

corpse  not  subject  of  property ....p. 

rights  of  relatives  to  custody  of  body p. 

rights  and  liabilities  of  cemetery  associations p. 

rights  and  liabilities  of  lot-owners p. 

Chattels.     See  Personal  Pkoperty. 

Civil  Damage  Laws.    See  Intoxicating  Liquohs. 

Confusion  of  Property. 

title  by p. 

by  misconduct  of  party p. 

by  consent  of  the  parties p. 

by  mistake  of  party p. 

by  act  of  stranger p. 

by  inevitable  accident p. 

Conspiracy. 

defined p. 

not  actionable  unless  resulting  in  damage  to  plaintiff p. 

and  something  is  done  in  pursuance  thereof p. 

cases  in  which  coupiracy  held  not  actionable p. 


2482, 
2482, 

2484, 
2486, 
2490, 
■2494, 
2494, 
2495, 
2498, 
2501, 
2505, 
2f)00, 
2006, 
2509, 
2510, 
2512, 
2512, 
2517, 
2518, 
2519, 


§  1377 

§  \;m 

§  1373 
§  1.37^ 
§13> 
§  1.381 
§  1382 

§  i.mi 

§  1384 
§1385 
§1386 
§1387 
§  1.387 
§1388 
§  1.389 
§1390 
§1391 
§1392 
§  1.393 
§1394 


2471,  §  1308 
2479,  §  1373 
§  1.3G0,  note 
§  13C6,  note 

2432,  §  1343 
2432,  §  1343 
2432,  §  1343 
2432,  §  1343 


2395,  §  1318 
239G,  §  1319 

2398,  §  1320 

2399,  §  1321 

2399,  §  1322 

2400,  §  1323 

1785,  §  1047 
1785,  §  1047 
1785,  §  1047 
1787,  §  1047 


p.  2482,  91377 

p.  2482,  §  1370 

p.  2484,  §1373 

p.  2486,  §137^ 

p.  2490,  §  13f 

p.  2491-2494,  §  138i 

p.  2494,  §  1382 

p.  2495,  §  i;W3 

p.  2498,  §1384 

p.  2001,  §1385 

p.  2505,  §1386 

p.  2500,  §1387 

p.  2006,  §1387 

p.  2509,  §i:i88 

p.  2510,  §1389 

p.  2512,  §1390 

....p.  2512,  §1391 

p.  2517,  §1392 

p.  2518,  §1393 

p.  2519,  §1394 

p.  2471,  §1308 

p.  2479,  §1373 

p.  2471,  §  13GC,  noto 
E>.  2471,  §  1366,  note 

p.  2432,  §1343 

p.  2432,  §1343 

p.  2432,  §1343 

p.  2432,  §1343 

p.  2395,  §1318 

p.  239G,  §1319 

p.  2398,  §1320 

p.  2399,  §1321 

p.  2399,  §1322 

p.  2400,  §1323 

p.  1785,  §  1047 

p.  1785,  §1047 

p.  1785,  §  1047 

p.  1787,  §1047 


INDEX. 

Conspiracy  (Contlnuoil;. 

wlio  liable 

eviduuco l^'  '"•"■SI04S 

plcailiag '.'. !'•  ' ''^'^  i'  I'Jl'J 

OontagiouB  Diseases.    Soo  NKouiiENCE. ^''  '"^**'  ^  '"^'^ 

Contract. 

waiving  contract  and  suing  in  tovt >   r •?«  s 

waiving  tort  and  suing  in  contract ....  ''  , '-'.,'     '*^'"''' 

Contribution,  1''  * ''''  ^  '"'-'7 

uo  contribution  among  wrong-do-  •. 177C,-177S,  ^  1045 

excoptionN i—  ' "  '"^'^ 

Contributory  NegUgence.    Soo  Neolu'ence. ^*^*'  '"''"''^''  ^  '"^*^ 

Corpses.     See  Cemeteries. 
Crimes. 

when  tort  a  crime  offender  need  not  first  be  prosecuted 

criminally „        , 

Criminal  Conversation.    See  Husband  and  Wife. ^ '    ' "  '  ^  '*^'^ 

Damage.     See  Torts. 

Damages.     See  also  Evidence;  Proximate  and  Rimote  C\isr 

measure  of,  in  actions  for  negligently  causing  dfath..pp.  1729-17.33  S  lo-^l 

where  deceased  was  a  minor ,,  p-^.j'  ^  ,  " 

measure  of,  in  action  for  false  imprisonment pp.  is44,  1S4.5'  ^  1077 

measure  of,  inaction  for  malicious  prosecution pp.  190!t'-litl-''  s  1 104 

measure  of,  in  action  of  crim.  con '    j'yjg  ^  j ,,,, 

measure  of,  in  action  of  seduction pp.  1933,  1934 '  s  no,) 

measure  of,  in  action  under  civil  damage  laws.,  pp.  19G2-19«4,'gi5  \lliO  ]  j-jy 

measure  of,  in  actions  for  negligent  injuries 1'.  '^  1 0 1   J  I  "1 7 

lossoftjme.       ^  .  "i' oKJl!  ^217 

mcapacity  to  labor j,  ._,,^]_  ^  ,.,j^ 

expenses  of  cure j,  .^[q,  '  ^  ,.]j, 

physical  pain  and  suffering .,  o]^;}'  ^  y^^^ 

mental  pain  and  suffering ,,  2IG3'  ^  p'lS 

exemplary  and  punitive  damages p.  21  Go!  §  121 9 

mitigation  of  damages ,,  ojQy'  ^  [.".^q 

amount  of  damages,  verdicts  sustained p.  2107^  g  1221 

amount  of  damages,  verdicts  not  sustained p.  21 70^  §  1222 

measure  of  damages  in  actions  for  slander  and  libel p.  2356^  §  1302 

measure  of  damages  in  actions  against  railroad  for  kill- 

'°g  8*°°'' p.2542,  §1418 

Damnum  Absque  Injuria.    See  Torls. 
Death.     See  also  Damages;  Evidence. 

no  action  at  common  law  for  causing  death p.  172I,  §  1016 

^^^''Vtion !!..!!p.  1721!  §1010 

statutory  remedy  in  the  United  States p.  1722,  §  1017 

statutes  are  remedial  and  liberally  construed p.  1722,  §  1017 

apply  to  corporations p.  1722,  §  1017 

and  to  mariue  torts p.  1722,  §  1017 


vt 


INDEX. 


Oeath  (Continued^ 

where  death  is  instantaneons ^ ..-../...  p.  1723,  §  1017 

who  may  sue,  and  for  whose  benefit pp.  1723-1726,  §  1018 

meaning  of  "wrongful  act,  neglect,  or  default " p.  1726,  §  1019 

no  action  if  deceased's  action  was  barred pp.  1727-1729,  §  1020 

as  whero  there  was  contributory  negligence p.  1728,  §  1020 

or  parties  were  "  fellow-servants  " p.  1728,  §  1020 

or  death  was  not  proximate  result  of  the  injury p.  1729,  §  1020 

or  deceased  was  engaged  in  illegal  service p.  1729,  §  1020 

or  he  had  compromised  action p.  1729,  §  1020 

Debts. 

as  chattels p.  2444,  §§  1351,  13S2 

Defamation.    See  Slander  akd  Libeii. 
Distress. 

of  cattle;  damage-feasant p.  1766,  §  1037 

of  goods  by  landlord p.  1766,  §  1037 

Dogs.     See  Animals.  • 

Donatio  Causa  Mortis.    See  Gifts. 

Entry. 

right  of  ow-    •  of  lands  to  eject  intruder p.  1766.  §  1036 

Evidence. 

itt  actions  tor  injuries  causing  death pp.  1735,  1736,  §  1024 

wealth  of  defendant  irrelevant p.  1735,  §  1024 

also  poverty  of  plaintiflF. p.  1735,  §  1024 

evidence  in  mitigation p.  1737,  §  1025 

In  actions  for  false  imprisonment p.  1846,  §  1078 

in  actions  for  malicious  prosecution. p.  1879,  §  1095;  pp.  1906-1909,  §  1103 

in  actions  of  crim.  con p.  1920,  §  1108 

in  actions  of  seduction pp.  1934-19.37,  §§  1120-1122 

in  actions  under  civil  damage  laws pp.  1966-1968,  §  1139 

presumption  of  negligence  from  happening  of  accident p.  2145,  §  1213 

in  actions  of  slander  and  libel pp.  2359,  2360,  §§  1303,  1304 

in  actions  of  conspiracy p.  1796,  §  1049 

False  Imprisonment.    See  Damages;  Evidence;  Pleading. 

defined  and  illustrated pp.  1S25-1S29,  §  10G4 

assault  not  essential p.  1825,  §  10G4 

but  party's  liberty  must  be  restrained  to  his  knowledge. p.  1826,  §  1064 

restraint  without  process,  when  permitted p.  1829,  §  1065 

imprisonment  of  insane  persons pp.  1829,  1830,  §  10C6 

arrest  on  process,  a  defense  to  action  for p.  1830,  §  1067 

even  in  civil  cases p.  1831,  §  10C8 

where  wrong  person  is  ariAsted pp.  1831,  1832,  §  lOuO 

where  process  is  void pp.  1832-1834,  §  1070 

where  process  is  defective pp.  18;W,  1835,  §  1071 

arrest  by  military  officers p.  1835,  §  1072 

arrest  without  warrant  by  officer pp.  1836-1839,  §  1073 

arrest  without  warrant  by  private  peiaon  pp.  1839-1841,  §  1074 


....p.  1723,  §1017 

.  1723-1726,  §  1018 

....p.  1726,  §1019 

.  1727-1729,  §  1020 

....p.  1728,  §1020 

....p.  1728,  §1020 

....p.  1729,  §1020 

....p.  1729,  §1020 

...p.  1729,  §1020 

2444,  §§  1351,  1352 


,..p.  1766,  §1037 
,..p.  1766,  §1037 


....p.  1766.  §1036 

.  1735,  1736,  §  1024 
....p.  1735,  §1024 
....p.  1735,  §1024 
....p.  1737,  §1025 
....p.  1846,  §1078 
).  1906-1909,  §  1103 
!....p.  1920,  §1108 
-1937,  §§  1120-1122 
).  1966-1968,  §  1139 
!....p.  2145,  §  1213 
2360,  §§  1303,  1304 
p.  1796,  §1049 

lDING. 

).  1S25-1S29,  §  1064 
!.,..p.  1825,  §1064 
idge.p.  1826,  §  1064 

p.  1829,  §1065 

).  1829,  1830,  §  1066 

p.  1830,  §1067 

p.  1831,  §1068 

1.  1831,  1832,  §  1069 
p.  1832-1834,  §  1070 
).  18;{4,  1835,  §  1071 

p.  1835,  §1072 

p.  1836-1839,  §  1073 
X  1839-1841,  §  1074 


INDEX.  yii 

false  Imprisonment  (Continued). 

judge  or  other  officer  issuing  process  beyond  his  juris- 

diction,  liable  for. PP-  1841,  1842,  §  1075 

liability  of  party  causing  arrest .un  1842-1844  §  1076 

Finder.    See  Lost  Property.  »  a      «" 

Fire-arms.     See  Negligence. 
Fires.    See  also  Railroads. 

liability  for  negligently  causing  iire p  2446  §  1 354 

in  clearing  land ''l'p.2U9,%m5 

statutory  habiLty p.  2451,  §  1356 

Fixtures, 

^     J^^*/"""^ ■•• -. -....-. ..p.  2437.  §1344 

Food.    See  Negligence; 

Fruit. 

^^^.chattela.,... ....>...... „ p.  2443.  §  1350 

^•cl'^f *;••■;•;•••••.••; P.2400,§1S24 

guts  dennea  ana  classitied p  2400  8  1394 

gifts  inter  vivos !!!p!  240o!  §  1323 

what  may  be  subject  of „  2400  §  1325 

subject-matter  must  be  certain p_  2401   §  1328 

donee  must  be  certain p  2401   8  1326 

unexecuted  gift p_  2401'  §  1327 

promise  to  make  gift p_  2401,  §  1327 

tevocation  of  gift pp.  24OI,  2414,  §§  1327,  1331 

gifts  on  condition p  2404  §  1323 

delivery  essential pp.  2405-2413^  §  1329 

acceptance,  when  essential , p_  2413  §  1330 

gifts  causa  mortis p  2415  §  1332 

must  be  made  in  expectation  of  death p.  2415  §  1332 

absolute  only  on  donor's  death p.  2417  5  1333 

what  property  may  be  subject  of p,  2418,  §  1334 

delivery  essential,  what  is  and  wliat  is  not  a  good  de- 
livery  p.  2419,  §  1335 

acceptance  essential p.  2427  §  1336 

other  requisites p.  2428,  §  1337 

Gunpowder.     See  Negligence. 
Highways.     See  Negligence;  Nuisance. 
Husband  and  Wife.     See  also  Intoxicating  LiQuoRa 

husband  may  sue  for  wife's  seduction p.  1915.  §  1105 

or  for  any  interference  with  his  marital  rights p.  1916,  §  1105 

proof  of  debauching  not  essential p.  1917,  §  HOS 

Or  inducing  wife  to  leave  liusbaud p.  1917^  §  1105 

wife  may  sue  for  loss  of  society  of  liusband p.  1917,  §  ii05 

defenses  in  action  by  husband  for  crim.  con p.  1918.  §  1106 

damages  in  action  by  husband  for  crim.  con pp.  1918,  1919,  §  1107 

evidence  in  action  by  husband  for  criiu.  con , p.  1920,  §  1 108 


Vlll 


INDEX. 


Ice.    See  also  Neolioence. 

title  to  ice  on  river  or  pond p.  2438,  §1345 

Bale  of  ice p.  2438,  §  1345 

rights  of  public  on. . . .p.  2438,  §  1345 

Injunction. 

will  not  lie  to  restrain  publication  of  libel .p.  2179,  §  ' 

Insanity.     See  Lunatic. 

Intent.     See  Torts. 

Intoxicating  Liquors. 

civil  remedy  for  injuries  caused  by p.  ICSO,  §  1124 

provisions  of  diflferent  statutes  giving  remedy,  pp.  1940-1946,  §§  1125-1127 
liability  absolute,  lawfulness  of  sale  immaterial.... pp.  1946,  1947,  §  1128 

who  liable,  master  and  servant,  principal  and  agent p.  1947,  §  1129 

joint  liability  of  several  sellers p.  1948,  §  1130 

liability  of  owner  or  lessor  of  premises pp.  1949-1952,  §  1131 

who  may  sue  —  in  general pp.  1952-1954,  §  1132 

injuries  to  the  person pp.  1954-1956,  §  1 133 

injuries  to  property pp.  1956,  1957,  §  11.% 

injuries  to  "  means  of  support " pp.  1957-1962,  §  1135 

exemplary  damages,  when  recoverable pp.  1962,  1963,  §  1136 

remote  damages  not  recoverable pp.  1963,  1964,  §  1137 

evidence  in  mitigation  of  damages p.  1965,  §  1138 

evidence  in  general pp.  1966-1968,  §  1139 

what  questions  for  court,  what  for  jury p.  1968,  §  1140 

pleading : pp.  1968-1970,  §  1141 

defenses pp.  1970-1972,  §  1 142 

Intoxication. 

no  defense  to  action  of  slander p.  1767,  §  1040 

as  contributory  negligence p.  2111,  §  1202 

Joint  and  Several  Liabilities. 

joint  wrong-doers,  liability  of  in  general pp.  1767-1769,  §  1041 

wrong-doers  liable  jointly  and  severally pp.  1773-1776,  §  1044 

no  contribution  among  wrong-doers pp.  1776-1778,  §  1045 

exceptions p.  1778,  §  1045 

one  joint  wrong-doer  cannot  sue  another  for  injury,  pp.  1779-1781,  §  1046 

in  cases  oi  malicious  prosecution p.  1893,  §  10!)9 

in  suits  under  civil  damage  law p.  1948,  §  1 130 

Landlord  and  Tenant.    See  Distress. 

Law  and  Fact. 

question  of  proximate  cause  is  for  jury p.  1756,  §  1032 

in  actions  of  malicious  prosecution p.  1903,  §  1102 

in  actions  under  civil  damage  laws p.  19G8,  §  1140 

in  actions  for  negligence pp.  2149-2155,  §§  1214,  1215 

in  actions  of  slander  and  libel p.  2376,  §  1308 

Libel.     See  Slander  and  Libel. 

Lost  Property. 

rights  and  liabilities  of  finders  of  chattbiS p.  2390,  §  1313 


...p.  2438,  §1345 
...p.  2438,  §1345 
..  .p.  2438,  §  1345 

....p.  2179,  §'  • 


....p.  ir;39,  §1124 

1946,  §§  1125-1127 

1946,  1947,  §  1128 

....p.  1947,  §1129 

....p.  1948,  §1130 

1949-1952,  §  1131 

1952-1954,  §  1132 

1954-1956,  §1133 

1956,  1957,  §  1134 

1957-1962,  §  1135 

.1962,  1963,  §1136 

1963,  1964,  §  1137 

....p.  1965,  §1138 

.1966-1968.  §1139 

....p.  1968,  §1140 

,  1968-1970,  §  1141 

1970-1972,  §  1142 

. . .  .p.  1767,  §  1040 
....p.  2111,  §  1202 

,  1767-1769,  §  1041 
.  1773-1776,  §  1044 
.  1776-1778,  §  1045 
....p.  1778,  §1045 
.  1779-1781,  §  1046 
,...p.  1893,  §  10<)9 
....p.  1948,  §1130 


....p.  1756,  §10.32 
....p.  1903,  §  1102 
....p.  19G8,  §  1140 
2155,  §§  1214,  1215 
....p.  2376,  §1308 


....p.  2390,  §1313 


INDEX.  jj. 

Lost  Property  (Continued). 

what  is  andis  not  lost  property 2'?0«>  s  mi 

rights  and  liabilities  of  finders  of  animals „  .±0^'  l  /I* 

Lunatic.  P'  ^*'^'  ^  ^■^^^ 

liable  for  torts ,„„_ 

aiiter  as  to  slander .■.■.■.'.'.■;;■.;■.;;:;;;■;: ^  i7G?iIo7 

imprisonment  of  insane  persons,  when  permitted. ■.■ppyi829,"  1S30,'  §  ml 
Malicious  Prosecution  ' 

action  lies  in  cases  of  wrongful  criminal  prosecution. pp.  1851,  IS",-^  §  lOSO 

and  in  civil  suit,  where  special  injury  accompanies  it p  185'^'  S  lOSl 

as  where  defendant  is  arrested r,  1 « -  ^'  *  i  /ic , 

or  his  property  IS  attached p.  185.3,  U  081 

other  cases....  pp.  185.3.  1854.  §  1081 

maUcious  prosecution  of  civil  cause  without  arrest  or 

attachment ,„._   0,^,0^, 

action  not  allowed  in  England '  ■,  ^■'^  !  , ^0" 

nor  in  United  States,  in  many  states „  15  J6  §  108'^ 

action  permitted  in  others pp."  j^q^  ^^.^[  ^  j^g" 

commencement  of  prosecution  must  be  proved p.  1859  §  I0S4 

termination  of  prosecution  must  be  proved pp.  1SG0-18G4,'  §  10S5 

what  is  termination  of  prosecution p,  jgOl'  §  1085 

what  is  not  termination  of  prosecution p  isg^'  §  10S5 

probable  oause  defined ii."  !!!  ^p!  1864.' §  1086 

what  u  probable  cause pp.  is65-j  807,  §  lOSG 

what  u  not  probable  cause pp.  18C6-I8C!),  §  10S6 

good  laith  and  honest  belief  immaterial p.  1871,  §  io87 

jurisdiction  of  court  immaterial. p.  is;/  §  jQgg 

guilt  or  innocence  irrelevant p  jgy.i'  ^  iq^q 

sufficiency  of  charge  irrelevant p.  ](^-^^  g  ]qqq 

personal  knowledge  by  prosecutor  unnecessary p.  1875,'  §  1091 

subsequently  discovered  facts  irrelevant pp.  1875.  187()'.  §  1092 

when  judicial  proceedings  evidence  of  probable  cause. .  .p.  1876,'  §  1093 

finding  of  true  bill p.  jg-,}'  ^  jqc^j 

binding  over  by  magistrate p.  1876,  §  1093 

judgment  of  conviction  reversed  on  appeal p,  1876,  §  1093 

when  judicial  proceedings  evidence  of  want  of  prob- 
able cause p.  i877_  §  1004 

acquittal  after  investigation p.  1877,  §  1094 

discharge  by  investigating  magistrate p.  1877,  g  1094 

ignoring  of  bill  by  grand  jury p.  1877.  g  1094 

discharge  from  prosecution  by  nolle  prosequi  is  not 

evidence  of  want  of  probable  cause p.  1878,  §  1094 

nor  failure  of  proceedings  to  declare  plaintiff  a  bank- 
rupt  p.  1878.  §  1094 

nor  abandonment  of  the  prosecution p.  1878,  §  1094 

evidence  of  character  and  reputation  of  plaintiflf  rele- 
vant on  question  of  probable  cause p.  1879,  S  1095 


Xf 


INDEX. 


Malicious  Prosecution  (Continued). 

evidence  of  hia  good  character  and  reputation  admis- 
sible on  his  behalf p. 

but  not  character  of  plaintiff  after  the  prosecution p. 

evidence  of  character  of  plaintiff  admissible  in  mitiga- 
tion of  damages p. 

general  character,  not  particular  acts,  admissible p. 

advice  of  counsel  as  a  defense pp.  1880- 

malice  also  essential;  what  is  malice pp.  1887- 

may  be  inferred  from  want  of  probable  cause. . .  .pp.  1889, 

or  from  discontinuance  of  arrest  made  in  a  civil  suit p. 

carrying  on  of  a  prosecution  "wantonly,"  and  for  no 

just  purpose p. 

setting  criminal  law  in  motion,  knowing  that  there  is 

no  ground  p. 

exhibiting  zeal  and  activity  in  conducting  the  prose- 
cution   p. 

long  delay  in  making  the  complaint p. 

willful  over-statement  of  amount  of  stolen  property p, 

discharge  of  accused  by  the  examining  magistrate p, 

ignoring  of  indictment  by  grand  jury p 

commencing  a  criminal  prosecution  to  collect  a  private 
claim p. 

where  prosecutor  acts  rashly,  wantonly,  or  wickedly 

in  charging  another  with  crime » p. 

commencing  successive  suits  on  same  claim p. 

other  cases p. 

not  inferred  from  employment  of  counsel  to  prosecute 

case p. 

malice  of  defendant  against  persons  other  than  plain- 
tiff irrelevant p. 

cannot  be  shown  by  opinion  of  persons  at  trial  that 

defendant  appeared  vindictive p. 

declarations  of  defendant  not  admissible  to  show  mal- 
ice   p. 

alitor  as  to  threats p. 

all  persons  carrying  on  prosecution  jointly  and  severally 

liable pp.  189*-: 

liability  of  agent  or  attorney p. 

liability  of  prosecutor  for  judicial  error  pp.  1898- 

burden  of  proof  of  want  of  probable  cause  on  plaintiff p. 

burden  of  proof  of  malice  on  plaintiff p. 

probable  cause  is  for  court p. 

except  when  the  facts  are  disputed p. 

whether  prosecutor  acted  bona  fide  upon  opinion  of  his 

counsel  is  for  jury p. 

whether  the  statement  to  counsel  was  full  and  fair 
statement  is  for  jury p 


879,  §  1095 
879,  §  1095 

879,  §  1095 
879,  §  1095 
887,  §  1096 

889,  §  1097 

890,  §  1098 
890,  §  1098 

890,  §  1098 

890,  §  1098 

890,  §  1098 
890,  §  1098 
890,  §  1098 
890,  §  1098 
890,  §  1098 

890,  §  1098 

890,  §  1098 
890,  §  1098 
890,  §  1098 

892,  §  1098 

892,  §  1098 

892,  §  1098 

892,  §  1098 

892,  §  1098 

897,  §  1099 

893,  §  1099 
902,  §  1100 

902,  §  1101 

903,  §  1101 
903,  §  1102 
903,  §  1102 

905,  §  1102 

905,  §  1102 


indea 


xi 


1879,  §  1095 
1879,  §  1095 

1879,  §  1095 
1879,  §  1095 
1887.  §  1096 

1889,  §  1097 

1890,  §  1098 
1890,  §  1098 

1890,  §  1098 

1890,  §  1098 

1890,  §  1098 
1890,  §  1098 
1890,  §  1098 
1890,  §  1098 
1890,  §  1098 

1890,  §  1098 

1890,  §  1098 
1890,  §  1098 
1890,  §  1098 

1892,  §  1098 

1892,  §  1098 

1892,  §  1098 

1892,  §  1098 

1892,  §  1098 

1897,  §  1099 

1893,  §  1099 
1902,  §  1100 

1902,  §  1101 

1903,  §  1101 
1903,  §  1102 
1903,  §  1102 

1905,  §  1102 

1905,  §  1102 


Malicio'is  Prosecution  (Continned). 

whether  the  attorney  waa  a  proper  addser  is  for  jury, .  .p.  1905  S 

question  of  malice  always  for  iurv " ,.    i  nn-   o 

evidence  in  actions  for  malicious  prosecution pp.  190G-1<)09  § 

damages  in  actions  for  malicious  prosecution pp.  1909-1912'  § 

Manure.  '  ^ 

status  of  as  property n^'ios 

titi«t° ■■.■!!!::::::»:  L^2i 

MUitary  law.  ^  '  ^ 

arrest  by  military  officers;  liability p  1335  ^ 

Minerals.  

status  of  as  property  2441   r 

„  '^^'^ .'.■'■.v;;;;;;;;;;p:o44i;§ 

Money. 

I'S  chattels p.  2444,  § 

Negligence.     See  also  Animals;  Proximate  and  Rfmote  Cause. 

what  is  negligence;  evidence  of  negligence ^j.  2145  8 

liability  for  keeping  or  shipping  dangerous  or  noxious  ar- 

^^^^^^ pp.  1975-1979,  § 

gunpowder  and  uitro-glycerine pp.  1975-1977  § 

noxious  gases p    jg-y^  g 

noxious  trees  on  land pp   jgyg   jgyy   o 

liability  in  vending  or  lending  dangerous  articles.  ..pp.  1979-1982,  § 

negligent  use  of  fire-arms pp.  1982-1987*  § 

explosions  of  steam-boilers ....     ,,   logy  a 

blasting  rocks pp.  198S-I990',  § 

liability  for  negligently  spreading  contagious  disease p.  1990,  § 

liability  for  selling  unwholesome  food p.  ]  ()<)o,  § 

when  negligence  a  question  for  the  court p.  2149,  g 

when  negligence  a  question  for  the  jury p.  2155  § 

pleading  in  actions  for  negligence pp.  2158-21 01   § 

measure  of  damages  in  actions  for  negligence  p.  2101,  § 

Injuries  on  real  •property. 
owner  of  premises  owes  no  duty  towards  trespassers. pp.  1902-1995,  § 

spring-guns  and  defense  of  property pp.  1995-1999,  § 

duty  to  persons  invited  expressly  or  impliedly pp.  1999,  2000,  § 

proprietors  of  places  of  public  resort pp.  20O0-2O0S,  § 

wharves p,  20OS,  § 

toll-bridges p.  20O8,  § 

railroad  stations p.  20O8  § 

injuries  from  defective  condition  of  leased  property p.  2012,  § 

when  lessor  liable p.  2012,  §  1154,  p.  2017,  § 

when  lessee  liable p.  2012,  §  1154,  p.  2017,  § 

excavations  on  one's  land  near  highway p.  2023-2025,  § 

excavations  in  public  street p.  2025,  § 

areas  under  sidewalks p.  2020-2028,  § 

objects  falling  upon  travelers ^ p.  2028,  § 


102 
102 
103 
104 

347 
347 

072 

340 
340 

351 

213 

143 

143 
143. 
143 
144 
145 
146. 
147 
148 
148 
214 
215 
216 
217 

149 
150 
151 
152 
153 
1.53 
153 
154 
155 
155 
157 
158 
1.59 
IGO 


Xll 


INDEX. 


Negligence  (Continued). 

snow  and  ice  on  roofs;  on  sidewalks p.  2031, 

telegraph  wires  in  streets p.  2032, 

objects  frightening  horses p.  2033, 

permissible  ol)3truction3  in  streets;  building  materials. pp.  2035-2037, 
Injuries  on  hijhivays.     See  also  Contrihutory  Neglhjence. 
liability  of  person  driving  on  highway;  degree  of  care 

required pp.  2038-2040, 

law  of  the  road;  keeping  to  the  right pp.  2040-2043, 

rights  as  between  jjedestrian  and  vehicle pp.  2043-2046, 

person  on  horseback pp.  2043-2040, 

collisions  with  runaway  horses p.  2040, 

Injuries  hy  railroads.     See  also  Conlrihuiory  NegVujence. 

railroad  tracks  in  streets;  negligence  in  care  of p.  2060, 

trains  frightening  horses  of  travelers pp.  2001-2004, 

obstruction  of  streets  by  railroad  trains p.  2004, 

injuries  to  travelers  by  street-cars pp.  2066-2009, 

rights  of  public  at  railroad  crossings p.  2070, 

care  required  of  railroad  at  crossings p.  2073, 

rate  of  speed pp.  2074,  2075, 

duty  to  whistle  or  ring  bell pp.  2076-2079, 

evidence  as  to  giving  of  signals p.  2079, 

gates  at  crossings p.  2079, 

flag-men  at  crossings p.  2079, 

dangerous  crossings;  obstructed  view p.  20S1, 

making  flying-switch p.  2083, 

backing  cars p.  20S3, 

duty  of  railroad  towards  trespassers  on  tfacka pp.  2095-2099, 

persons  on  track  by  expression  permission p.  2099, 

persons  on  track  by  license  or  custom p.  2100, 

•Contributory  negli'jence. 

contributory  negligence  of  plaintiflF  a  bar p.  2102, 

damage  not  apportioned,  except  in  admiralty p.  2100, 

what  is  contributory  negligence p.  2107, 

must  be  proximate  cause  of  injury p.  2108, 

where  defendant's  act  willful  or  reckless p.  2109, 

failing  to  anticipate  another's  fault p.  2109, 

want  of  care  produced  by  defendant's  wrong p.  2110, 

intoxication  as  contributory  negligence p.  2111, 

acting  erroneously  through  sudden  fear p.  21 14, 

endeavoring  to  save  life  of  another p.  21 17, 

comparative  negligence,  rule  of p.  21 19, 

when  plaintiff  is  violating  the  law p.  2121, 

when  plaintiff  a  trespasser p.  2123, 

contributory  negligence  of  children  and  persona  non  sui  juris.p.  2123, 

injuries  to  trespassing  children pp.  2125-2130, 

imputed  negligence  of  parents  or  guardians pp.  2132-2140, 

imputed  negligence  iu  other  cases p.  2141, 


§1161 
§1162 
§1163 
§1164 


§1165 
§1166 
§1167 
§  1167 
§  1168 

§1175 
§1176 
§1177 
§1178 
§1180 
§1181 
§  1182 
§  1183 
§1184 
§  1185 
§  1185 
§  11S6 
§1187 
§1187 
§1192 
§1193 
§  1194 

§1195 
§1196 
§1197 
§  1198 
§1199 
§  1200 
§  1201 
§  1202 
§1203 
§  1204 
§  1205 
§  1206 
§1207 
§  1208 
§  1209 
§  1210 
§1211 


INDEX. 


XlU 


, p.  2031,  §1161 

p.  2032,  §1162 

p.  2033,  §1163 

pp.  2035-2037,  §  1164 

ire 

)p.  203S-2040,  §  1165 
ap.  2040-2043,  §  1166 
^p.  2043-2046,  §  1167 
pp.  2043-2046,  §  1167 
p.  2046,  §  1168 

, p.  2060,  §1175 

pp.  2061-2064,  §  1176 

p.  2064,  §1177 

?p.  2066-2069,  §  1178 

p.  2070,  §1180 

p.  2073,  §1181 

ip.  2074,  2075,  §  1182 
pp.  2076-2079,  §1183 

p.  2079,  §  1184 

p.  2079,  §  1185 

p.  2079,  §1185 

p.  2081,  §1186 

p.  2083,  §1187 

p.  208.3,  §1187 

pp.  2095-2099,  §1192 

p.  2099,  §  1193 

p.  2100,  §1194 

p.  2102,  §1195 

p.  2106.  §1196 

p.  2107,  §1197 

, p.  2108,  §1198 

p.  2109,  §1199 

, p.  2109,  §1200 

p.  2110,  §1201 

p.  2111,  §  1202 

p.  2114,  §1203 

p.  2117,  §1204 

p.  2119,  §1205 

p.  2121,  §1206 

p.  2123,  §1207 

ttijuri3.p.  212.3,  §1208 
.pp.  2125-2130,  §  1209 
,pp.  2132-2140,  §  1210 
p.  2141,  §1211 


Negligence  (Continaed). 

burdea  of  proof  of  contributory  negligence p  3940  r  joi  , 

in  case  of  fires  by  railroads o^^i'  «  jgg, 

of  person  injured  by  animal " .^^'  2500'  §  1387 

on  injuries  to  animal  on  track  by  railroad p.  2536  §§  1411    1412 

duty  of  person  on  highway  to  look  for  defects  and  dangers,  p.  2M8  §  11C9 

what  is  proper  use  of  highway ^  gOSo'  §  1170 

rate  of  speed;  manner  of  driving , '  onxo  s  1 1  -1 

drmngatmght     p.  2053,  §  1172 

skittish  or  scared  horse .,  on->i   «  n-ro 

defective  vehicle ^  2054  §  1173 

when  plaintiff  has  knowledge  of  defect pp.  2054-2059*  §  II74 

contributory  negligence  of  traveler  in  case  of  injury  by 

street-cars pp  2069-2071,  §  1179 

contributory  negligence  of  traveler  at  railroad  crossing. ...  p.  2083,  §  1188 

duty  to  look  and  listen pp.  208^-2089]  §  1 189 

other  cases pp,  2089-209.%  §  1190 

persona  under  physical  disabilities p.  2093  §  1191 

^^^^^^^ p.  2093,' §1191 

trespassers  on  track p  2095^  §  1192 

Nuisance. 

party  injured  may  himself  abate p.  1757  §  2033 

aliter  where  nuisance  is  public p.  1757  s  jq33 

obstructions  on  public  highways p.  1758  §  1033 

abatement  must  not  cause  breach  of  peace p.  1759  §  1033 

notice  of  intention  must  be  given p.  1759  §  1933 

nuisance  consisting  in  use  and  not  in  location,  offensive 

use  only  can  be  stopped p.  1759^  §  joSO 

offensive  manufactory  cannot  be  pulled  down p.  1760,  §  1030 

nor  bawdy-house p.  1761',  §  1033 

aliter  as  to  house  infected  with  cholera p.  17(51,  §  1033 

legislature  may  authorize  abatement  of  nuisance p,  1766,  §  1033 

Occupancy. 

title  to  chattels  by p,  2384,  §  1309 

Officers.    See  also  False  Imprisonment. 

liability  of  plaintiff  in  writ  for  acts  of  oflScera, pp.  1770-1772,  §  1042 

liability  of  officers  for  acts  of  deputies p.  1772,  §  1043 

Parent  and  Child.     See  also  Intoxicating  Liquors;  Seduction. 

parent  has  right  to  action  for  loss  of  services  of  child p.  1920,  §  1109 

as  for  enticing  child  away p.  1920,  §  1109 

or  forcibly  abducting  the  child p.  1921,  §  1110 

or  beating  or  otherwise  purposely  injuring  child p.  1921,  §  1110 

or  negligent  injury  which  disables  child  from  labor p.  1921,  §  1110 

or  giving  shelter  or  protection  to  child  to  enable  him  to 

keep  away  from  parent p.  1921,  §  1110 

or  enticing  minor  child  from  service  of  parent,  and  pro- 
curing her  to  be  married  without  his  consent p.  1921,  §  1110 


XIV 


INDEX. 


Pension. 

right  to,  an  incorporeal  chattel p.  2443, 

Personal  Property.  See  also  Accession;  Amimals;  Con- 
fusion OF  Propeety;  Giptsj  PiXToaEsj  Fike; 
Lost  Propebtt. 

title  by  original  occupancy ..p.  2384, 

title  by  abandonment  by  ovmer p.  2384, 

waifd  and  treasure-trove . ; p.  2.^83, 

title  by  gift  p.  2400, 

dififercnt  kiuda  of  personal  property p.  2429, 

chattels  real .^ p.  2429, 

chattels  personal p.  2429, 

corporeal  and  incorporeal  property p.  2429, 

animals > p.  2430, 

annuities ^ . . .- p.  2430, 

copyrights,  trade-marks,  and  patents p.  2431, 

corpses p.  2432, 

fixtures p.  2437, 

Ice - p.  24.S8, 

minerals p.  2441, 

manure p.  2442, 

salaries  and  pensions p.  2443, 

ships  and  vessels p.  2443, 

vegetables;  fruit p.  2443, 

money  and  evidences  of  indebtedness p.  2444, 

debts  and  demands  not  evidenced  by  writing p.  2444, 

other  kinds  of  chattels. p.  2445, 

Pleading. 

in  actions  for  injuries  causing  death pp.  1737,  1738, 

in  action  for  false  imprisonment pp.  184G,  1847, 

in  action  of  seduction pp.  1937, 1938, 

in  action  under  civil  damage  laws pp.  1968-1970, 

in  actions  for  negligent  injuries .pp.  2158-21G1, 

in  action  of  slander  and  libel p.  2370, 

in  actions  of  conspiracy p.  1798, 

in  action  against  railroad  for  killing  stock p.  2540, 

Process.     See  also  False  Imprisonment. 

liability  of  plaintiff  in  writ  for  acts  of  officers. pp.  1770-1772, 

restraint  without  process,  when  permitted 

p.  1829,  §  1065;  p.  1836,  §  1073;  p.  1839, 

case  of  insane  persons p.  1829, 

Frozimate  and  Remote  Cause. 

person  not  liable  for  remote  effect  of  his  acts p.  1740, 

proximate  damages  defined p.  1740, 

intervening  causes pp.  1743-1748, 

not  liable  for  unexpected  damage pp.  1748-1752, 

in  case  of  fires pp.  1752-175G, 


1349 


§1309 
§  1310 
§1311 
§  1324 
§  1339 
§  1339 
§  1339 
§  1339 
§1340 
§  1341 
§  1.342 
§  1343 
§  1344 
§  1345 

§  v.m 
§  i:u7 

§  I. -US 

8  i;ii9 
S  i;;.")! 

§  lli.VJ 

§  la.-).'! 

§  1025 
§  1070 
g  1123 
§1141 
S  121 J 
§  loOo 

§  im) 

§1417 

§1042 

§1074 
§  1006 

§1028 
§  1028 
§  1029 
§  1030 
§1Q31 


p.  2443,  S  1349 

[)N- 

be; 

p.  2384,  §  1309 

p.  2384,  §1310 

p.  2388,  §  1311 

p.  2400,  §  13'J4 

p.  2429,  §1330 

p.  2429,  §  1339 

, p.  2429,  §  1339 

p.  2429,  §  1330 

p.  2430,  §  1340 

p.  2430,  §1341 

p.  2431,  §  1342 

p.  2432,  §  1343 

p.  2437,  §  1344 

p.  2438,  §  1345 

p.  2441,  §  134(5 

p.  2442,  §  1317 

p.  2443,  §  1348 

p.  2443,  S  13M) 

p.  2443,  i;  V.m 

p.  2444,  8  ISol 

p.  2444,  g  13,V2 

p.  2445,  §  13,-)3 

ip.  1737,  1738,  §  1025 
)p.  184G,  1847,  §  K)7i) 
Dp.  1937,1938,  §1123 
pp.  1968-1970,  «5  1 141 
pp.  2158-2101,5;  121o 

p.  2370,  §  130o 

p.  179S,  g  1050 

p.  2540,  §  1417 

pp.  1770-1772,  §  1042 

1073;  p.  1839,  §  1074 
p.  1829,  §  1006 

p.  1740,  §1028 

p.  1740,  §  1028 

3p.  1743-1748,  §  1029 
pp.  1748-1752,  §  1030 
jp.  1752-1750,  §  1031 


INDEX. 


icv 


Proximate  and  Bemote  Cause  (Continued). 

question  of,  for  the  jury p  j^^q^  g  jq^^ 

remote  damages  in  actions  under  civil  damage  lawa p.  1903,  8  1137 

Public  Injury.    See  also  Crimes. 

for  public  injury,  party  suflFcring  cannot  sne p,  1719^  §  1014 

unless  he  suffers  special  injury p_  jyjcj  a  iqj  . 

Bailroads.     See  also  Neolioemce. 

liability  of,  for  destruction  of  property  by  fire pp.  2'151-2453,  §  1357 

duty  as  to  construction  of  engine p_  0453  S  iSjS 

duty  as  to  management  of  engine p,  2454  §  1359 

duty  as  to  track  and  right  of  way p.  2450,  §  1300 

evidence  of  negligence p_  0453  §  1301 

evidence  of  other  fires p_  2459  8  1302 

contributory  negligence  of  owner p.  2401   §  1303 

statutory  liability p.  2465,'  §  1304 

proximate  and  remote  cause pp.  1752-1756  §  1031 

injuries  to  animals  on  track;  duty  of  railroad  to  fence p.  2521,  §  1.395 

by  contract p,  2521,  §  139G 

duty  as  to  animals  on  track;  slackening  speed p.  2522,  §  1397 

duty  as  to  animals  on  track;  ringing  bell  and  sound- 
ing whistle p,  2524,  §  1,398 

evidence  of  negligence,  burden  of  proof p.  2525,  §  1399 

duty  to  fence  by  statute p,  2525,  §  1400 

who  within  the  statute p.  2527,  §  1401 

at  what  places  fence  required. p.  25G8,  §  1402 

in  cities  and  towns p.  2528,  §  1403 

at  highway  crossings p,  2529,  §  1404 

at  public  places p.  2529,  §  1405 

what  fence  sufficient p.  2530,  §  1406 

care  in  maintenance  of  fence p.  2531,  §  1407 

at  private  crossings p.  2532,  §  1408 

cattle-guards p.  2533,  §  1409 

release  of  duty  to  fence p.  2534,  §  1410 

contributory  negligence;  as  to  fences p.  2536,  §  141 1 

contributory  negligence;  as  to  cattle  running  at  large. p.  2536,  §  1412 

what  injuries  within  statute p.  253S,  g  1413 

injuries  to  railroad p.  2539,  §  1414 

law  and  fact » p.  2539,  §  1415 

pleading p.  2540,  §  1416 

burden  of  proof p.  2541,  §  1417 

measure  of  damages. ^ .  .^.,  ^  .. .  _». ^  .p.  2542,  §  1418 

Batification. 

person  may  become  wrong-doer  by ,. . .  .pp,  1767-1769,  §  1041 

Heal  Property.    Injuries- on,  see  Neouoence. 
Recaption. 

defined  and  illustrated pp.  1763-1766,  §  1035 

Beprisal. 

defined  and  illustrated pp.  1763-1766,  §  1035 


XVI 


INDEX. 


Salary. 

right  to  receive,  an  unincorporeal  chattel p.  2443,  §  1848 

Seduction.     Sec  also  Husband  ash  Wife;  Parent  and  Child. 

aeduction  defined;  elements  of pp.  1921,  1922,  §  1110 

seduction  alone  not  actionable pp.  1922-1924,  §  1 11 1 

right  of  action  by  woman  seduced pp.  1924-1 92G,  §  1112 

by  father pp.  1926-1928,  §  1113 

by  mother p.  1929,  §  1114 

by  other  persons p.  1930,  §  1115 

where  woman  is  of  ago p.  1931,  §1116 

statutory  remedy p.  1932,  §  1 117 

defenses  to  suit pp.  1932,  1933,  §  1118 

measure  of  damages pp.  1933,  1934,  §  1 1 1 9 

evidence,  in  general pp.  19.34,  1935,  §  ll'JO 

evidence,  in  aggravation p.  1935,  §  1121 

evidence,  in  mitigation pp.  1936,  1937,  §  1122 

pleading pp.  1937,  1938,  §  1123 

Self-defense. 

person  may  prevent  an  injury  to  himself p.  1703,  §  1034 

or  prevent  a  wrong-doer  from  committing  unlawful  act.. p.  1763,  §  1034 
Ships  and  Shipping. 

title  to  wrecks  and  abandoned  vessels p.  2389,  §  1312 

what  are  "ships  and  vessels" p.  2547,  §  1419 

title  to  ships,  how  acquired p.  2548,  §  1420 

bills  of  sale;  registration p.  2548,  §  1420 

mortgage  of  vessel p.  2550,  §  1421 

rights  and  liabilities  of  part  owners p.  2550,  §  1422 

bottomry;  respondentia p.  2551,  §  1423 

rights,  powers,  and  duties  of  master pp.  2553-2555,  §§  1424,  14l'j 

ship's  husband p.  2557,  §  1420 

supercargoes p.  2557,  §  1427 

rights  and  duties  of  seamen p.  2557,  §  142S 

right  to  wages p.  2558,  §  1429 

what  will  forfeit  wages p.  2559,  §  1430 

pilots,  rights  and  duties  of p.  2560,  §  1431 

liability  of  ship  for  repairs  and  supplies. p.  2560,  §  1432 

employment  of  ship;  general  ship p.  2561,  §  1433 

charter-parties p.  2561,  §  1434 

demurrage p.  2563,  §  1434 

collisions,  liability  for p.  2564,  §  1435 

lights,  duty  as  to p.  2565,  §  1436 

watch  and  lookouts p.  2566,  §  1437 

salvage,  what  is  subject  of p.  2567,  §  1433 

who  entitled  to p.  2568,  §  1439 

amount  of p.  2569,  §  1440 

general  average p.  2569,  §  1441 

admiralty  jurisdiction  in  general p.  2572,  §  1442 

torts  on  the  high  seas .p.  2574,  §  1443 


p.  2443,  §1348 

■ID  ClIILO. 

.pp.  1921,  1922,  §  1110 
.pp.  1922-1924,  §  1111 
.pp.  1924-1 92G,  §  1112 
.pp.  192G-1928,  §  1113 

p.  1929,  §  1114 

p.  19.30,  §  1115 

p.  1931,  §1110 

p.  1932,  §1117 

pp.  1932,  1933,  §  1118 
pp.  19.33,  1934,  §  1119 
pp.  1934,  19.35,  §  1120 

p.  1935,  §1121 

pp.  19.36,  1937,  §  1122 
pp.  1937,  1938,  §  1123 

p.  176.3,  §1034 

iilact..p.  1763,  §  1034 

p.  2389,  §1312 

p.  2547,  §1419 

p.  2548,  §1420 

p.  2548,  §1420 

p.  2550,  §1421 

p.  2550,  §1422 

p.  2551,  §1423 

53-2555,  §§  1424,  U2o 

p.  2557,  §  142(} 

p.  2557,  §  1427 

p.  2557,  §1428 

p.  255S,  §1429 

p.  2559,  §1430 

p.  2560,  §1431 

p.  2560,  §1432 

p.  2561,  §1433 

p.  2561,  §1434 

p.  2563,  §  1434 

p.  2564,  §1435 

p.  2565,  §1436 

p.  2566,  §1437 

p.  2567,  §1438 

p,  2568,  §1439 

p.  2569,  §  1440 

p.  2569,  §  1441 

p.  2572,  §  1442 

p.  2574,  §1443 


INDEX. 

xvu 
Slander  and  Libel. 

what  defamatoiy  worda  are  actionable,  in  general. .  .pp  on^o.-T   a  ,...., 
intent  with  which  words  wore  used  irrelevant  ,'l'  ^  ^f 

right  to  publish;  censorship !'•  -  'j  < ,  3  1224 

injunction  will  not  lie  to  restrain  publication'. '.'.'. I  o,5  1 1";  v 

comment  and  criticism  on  public  matters r,"  " Ki '  s    ""7 

what  are  public  matters ^ '  ,,    ,  '  ,      '"' 

national  and  state  matters ^    01^"'  ^.  ^""^ 

administration  of  justice  ^'  "  ^  '""'^ 

local  government. ...      ^''  ■'^^'  ^  •"•"^ 

public  institutions '.^'.'.\\^'.'.'.'.'.'.'.'. ^"  ol''!-'  ^,  ' 'S\ 

ecclesiastical  matters ^^  o    -'  ^  ^'"^ 

literary  and  artistic  criticism  . .     .    ^'  m^-'  !  ! f!"! 

other  public  matters ■.■.■.■.'.■.■.■.:;; p  "  86*  S  m" 

publication  of  libel,  what  is p.'  gViJt'  9 }'     Hi 

who  liable  for  defamation ^^'      Toim  l  vm 

°«''«p-p-« ;'.".".::::: p.;   §1033 

repetition  of  libel p  2  99       039 

repetition  of  Blander %'01   5    '>4o 

construction  of  defamatory  words , "  ooni'  s  1 .1 , , 

the  innuendo .^^o? 

.,         1,       .     p.  2208,  §  1242 

the  colloquium p.  2208  S  I'M" 

certamty  as  to  act  charged 0.^13'  ^  J043 

certainty  as  to  person  defamed ,/  .~o,  ^'  >,,.",, 

who  may  sue ..j.   ^  j.,^^ 

Blander,  when  and  when  not  actionable p.  oo-jq'  g  1045 

words  imputing  indictable  offense pp.  2221-22.35'  §  l'"46 

words  imputing  contagious  disease p_  22.35,  §  ^^7 

slander  in  one's  calling  or  office p  .m^^'  ^  ,." , « 

office  orcallingmay  be  of  any  kind p  0037'  g  jo^g 

illegal  occupations .".'."."." 'p."  2238',  §  1250 

past  holdmg  unsufficient p  o^^j   g  i^-jj 

words  imputing  ignorance,  where  learning  and  skill 

are  requisite,  actionable p  004.2  §  l"o2 

or  dishonesty  where  integrity  is  indispensable p.  2242,  §  1252 

or  immorality  where  morality  is  required p.  2242,'  §  1252 

or  absence  of  any  qualifications  necessary  to  prosecu- 
tion of  particular  calling  or  holding  of  particular 

.„°®°®-. p.  2242,  §  1252 

Illustrations p.  2243,  §  1253 

*"«'''^«y« p.  2244,  §1254 

<>^^^Sym^° p.  2246,  §1255 

mechanics  and  workmen p.  .2247^  g  1055 

merchants  and  traders p.  2248  §  1257 

°®<'^.''« p.  225o'§1258 

physicians  and  surgeons p.  2251,  §  1259 

not  actionable  where  general  reputation  is  attached p.  2252,  §  1200 


XVlll 


INDEX. 


Blander  and  Libol  (Continued). 

act  rcfurroil  to  niU8t  bo  iuciilont  to  calling p.  2250,  §  I2G1 

and  must  ho  applied  thereto p.  2250,  §  12(32 

charge  an  to  particular  transaction  not  actionable p.  2258,  §  1203 

comparison  an  to  merits  not  actionable p.  2262,  g  1204 

wordd  ordinarily  not  actionable  except  in  case  of  special 

damage p.  22G3,  §  1205 

libel  defined,  form  of p.  2200,  §  1200 

what  libelous  words  are  actionable pp.  2207-2274,  §  1207 

M'hat  libelous  words  are  not  actionable p.  2274,  §  1208 

libels  on  holders  of  offices p.  2276,  §  1209 

libuls  on  professional  men p.  2279,  §  1270 

liliels  on  clergymen p.  2280,  §  1271 

libels  on  journalists  and  newspapers p.  2281,  §  1272 

libels  on  lawyers p.  2282,  §  1273 

libels  on  modicnl  men p.  2283,  §  1274 

libuls  on  merchants  and  traders p.  2284,  §  1275 

libol  on  thing p.  2286,  §  1270 

slander  of  title pp.  228S-2293,  §  1277 

slander  of  goods p.  2293,  §  127S 

otlier  cases p.  2295,  §  1270 

Dejt'iiies. 

justitication pp.  2297-2300,  §  12S0 

privileged  communications;  absolute  privilege p.  2300,  §  1281 

executive  of  nation  or  state p.  2307,  §  12S2 

members  of  legislative  bodies p.  2307,  §  12S3 

witnesses  in  judicial  proceedings p.  2.308,  §  12S4 

judges p.  2310,  §  12S5 

jurors p.  2311,  §  12SU 

X^lcadings  and  papers  in  cause p.  2311,  §  1287 

counsel  and  attorney p.  2314,  §  1288 

military  courts p.  2315,  §  I'JSO 

privileged  communications;  qualified  privilege p.  2310,  §  I'J'Ji) 

duty  to  society p.  2310,  S  I'JDO 

as  to  character  of  servants p.  2317,  §  1291 

answers  to  confidential  inquiries p.  2310,  ^  l'."' 

iuforuiatiou  volunteered n.  23'2 1,  §  ]'2\)A 

confidential  relationship .  .  >.  ;?  12'.14 

statement  to  officers  of  the  law  and  public  author.  ..327,  §  12'.),') 

common  interest p.  2331,  S  12'.)6 

in  self-defense p   2330   -  1207 

reports  of  judicial  proceedings p.  234     >;  1208 

legislative  ^jroceedings p.  2340,  «;  1 200 

other  reports  not  privileged p.  23.")0,  S  l.'iOt) 

malice,  proof  of p.  2350,  §  l.'iOl 

measure  of  damages p.  2356,  §  1  .">i)2 

evidence  admissible  iu  aggravation p.  2359,  §  1303 


INDEX. 


XIX 


p.  2260,  §  12(51 

p.  2250,8  1202 

p.  2258,  §  I'JOa 

p.  2202,  8  1204 

Gcial 

p.  2203,  8  1205 

p.  2200,  §  1200 

.pp.  2207-2274,  §  1207 

p.  2274,  8  1208 

p.  2270,  8  1209 

p.  2279,  §  1270 

p.  2280,  §1271 

p.  2281,  §1272 

p.  2282,  §  1273 

p.  2283,  §  1274 

p.  2284,  §  1275 

p.  2280,  8  1270 

pp.  2288-2293,  8  1277 

p.  229.3,  §1278 

p.  2295,  §1279 

pp.  2297-2.300,  §  1280 

p.  2.300,  §  I'JSl 

p.  2307,  8  1282 

p.  2307,  §  1283 

p.  2.308,  §  1284 

p.  2310,  §  12!ir, 

p.  2311,  §  12S{i 

p.  2311,  §  12S7 

p.  2314,  §  12S8 

p.  2315,  §1289 

p.  2310,  §  iL-'JO 

p.  2310,  §  I'JDO 

p.  2317,  §  I2!)l 

p.  2310,  ?  It."'" 

n.  2.3'    ,  §  12tl;i 

'   ..'»,  §  12!)4 

ri  ..327,  §  12',).-) 

p.  2331,  §  12!)6 

1.   2330   ,;  1207 

p.  234     iJ  1208 

p,  2349,  §  )2'.)0 

p.  2.350,  s  i;wo 

p.  2350,  §1301 

p.  2350,  g  ];)n2 

p.  2359,  §1303 


Slander  and  Libel  (Contimicd). 

evidouco  ad.ni88il,lo  in  mitigation p,  2300  «  1304 

Bpocial  damage,  what  in  and  wiiat  is  not '    o-j^g'  ^    '..,^ 

pleading  in  action  of  slandor  and  liJM.l ,  '  Z'  I  ,'  ,)* 

who  may  bring  action '.V,  ■.■.'.■.  ".'/■p  'osiS'     la^y 

hbel  or  no  libel  a  mixed  qnestion  of  law  and  fact n   "'m\  8  i  -ma 

lunatic  not  liable  for ^"^'  "''    '  I  ' •'"** 

.....  ,,  P-  1707,  §  1040 

intoxication  no  dofonso '    ,,,.,'  '  ,^  " 

Snow.     See  NEOLIUK.N.E.  P-  "^''  ^  ^^^ 

Spring-guns.     See  Negligence. 

Steam-boilers.    See  Negligence, 

Street-railroads.    Sec  Negligence. 

Telegraphs.     See  Negligence. 

Toll-bridges.     See  Negligence. 

Torts.    See  also  Accident;  Conspiracy;  Crimbs;  DeatBj 

Damages;  Fal.se  LMi-nisoNMENr;  Public  Injury* 

Proximate  and  Remote  Cause. 

^ff7^1 •,;: p.  1710,81009 

intent  not  essential  in p.  1710,  §  1010 

act  intended,  but  not  accomplished p   |yjQ  «  joiO 

act  not  actionable  because  done  with  wrong  intent p,  1710'  §  1010 

acts  not  actionable;  conspiring  to  refuse  insurance 

on  property         p.  1711.  §  1010 

maliciously  collecting  notes  of  bank  and  presenting 

them  for  redemption p_  jyjg  §  lOlO 

maliciously  adopting  a  trade-mark p,  1712'  «  jqjq 

throwing  open  one's  land  to  public,  so  aa  to  avoid  a 

/""■.g^«, p.  1712,81010 

throwing  down  fences  put  up  through  one's  land  to 

mark  the  lines  of  a  rood p   iy|2  §  lOlQ 

erecting  fence  to  obstruct  light  and  air p.  1712  §  lOlO 

publishing  a  rival  directory p,  1712  §  1010 

refusing  to  honor  order p.  1713  §1010 

damage  and  injury  must  concur p,  1713  §1011 

damnum  absque  injuria,  illustrations  of  injuries  not 

actionable pp_  I7i4_i7i7^  §  1012 

waiving  contract  and  suing  in  tort p.  1733  §  i026 

waiving  tort  and  suing  in  contract p.  1739^  §  io27 

no  defense  that  wrong-doer  an  infant p.  1707,  §  1040 

or  a  married  woman p_  17(57  §  ^QiQ 

or  a  corporation p,  17(57^  §  jq^q 

or  a  lunatic p.  1767]  §  ^q^ 

intoxication  not  a  defense p,  17(57  o  104Q 

person  may  become  wrong-doer  by  adoption  or  ratifi- 

^^^^°^ pp.  1707-1709,  §  1041 

joint  wrong-doers,  liabilities  of pp.  1707-1709,  §  1041 

liability  of  plaiutiflf  in  writ  for  acts  of  officers. .  .pp.  1770-1772,  §  1042 


XX 


INDEX. 


Torts  (Continued). 

liability  of  officers  for  acta  of  deputies p.  1772,  §  1043 

wrong-doers  liable  jointly  and  severally pp.  1773-1776,  §  1044 

no  contribution  among  wrong-doers , .  .pp.  1776-177S,  §  104^ 

exceptions , p.  1778,  §  1045 

one  joint  wrong-doer  cannot  sue  another  for  injury.p-^.  1779-1781,  §  1046 
Treasure-trove. 

defined  and  explained p.  2388,  §  1311 

Trees.    See  Negligence. 
Vegetables. 

are  chattels p.  2443,  §1350 

Waife. 

defined  and  explained p.  2388,  §  131 1 

Wharves.    See  Negligence, 


p.  1772,  §1043 

..pp.  1773-1776,  §  1044 
.  ...pp.  177&-1778,  §  1045 

p.  1778,  §1045 

ury.pi).  1779-1781,  §  1046 

p.  2388,  §1311 

p.  2443,§1350 

p.  2388,  §1311 


